Discrimination in the Name of Neutrality

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I. Executive Summary

To use the language of sports, the law you put forward
essentially says, "Ball games are forbidden in the schoolyard." But then comes
the second sentence: "Soccer is not a ball game."

-Comment from an MP during the debate in the
Baden-Württemberg parliament on the draft law banning religious symbols for
teachers[1]

In recent years there has been a debate in Germany, as in many other European countries, about how to deal with an increasingly diverse
society. One of the most prominent controversies has been the wearing by some
Muslim women of the headscarf, a form of religious dress that usually conceals
the hair and neck. In half of Germany's states (Länder), the past five
years have seen the introduction of restrictions on women wearing the headscarf
in public employment, in particular in schools.

In Germany the laws and policies on the use of religious
symbols in schools are the responsibility of the 16 states, not the federal
government. The approach of the states toward the headscarf, and other
religious symbols in schools, has varied, sometimes starkly. Eight
states-Baden-Württemberg, Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North
Rhine-Westphalia, and Saarland-have enacted legislation and policies to
prohibit teachers in public schools from wearing certain visible items of
religious clothing and symbols. In two states, Hesse and Berlin, the ban is
even applied more widely, covering many civil servant roles.

None of the laws banning religious symbols and dress
explicitly target the headscarf. The restrictions in Bremen and Lower Saxony focus on the effect of a particular teacher's outward appearance as regards
the school's ideological and religious "neutrality," but do not strictly
prohibit religious clothing or symbols. Nor do they create explicit exceptions
for the Christian faith or Western traditions and values. But the majority of
the states with bans (Baden-Württemberg, Bavaria, Hesse, North
Rhine-Westphalia, and Saarland) allow some form of exemptions for Christianity
and Western cultural traditions.

The headscarf has, however, been the focus of the laws'
prior parliamentary debates and explanatory documents, which have emphasized
the need to recognize the Western cultural tradition shaped by Christianity
(and Judaism). Furthermore, the only court cases to date involving challenges
to the laws have concerned women wearing a headscarf.

The state of Berlin takes another approach. Its law,
introduced in 2005, categorically bars all public school teachers (including
kindergarten teachers if parents object), as well as police officers, judges,
court officials, prison guards, prosecutors, and civil servants working in the
justice system, from wearing visible religious or ideological symbols or
garments (with the exception of small pieces of jewelry). There have been no
court cases yet in Berlin under the law.

Eight states have no specific legislation relating to
religious clothing or symbols in employment. Three of those states–Brandenburg,
Rhineland-Palatinate, and Schleswig-Holstein-considered but ultimately rejected
such restrictions.

After examining the laws and policies in the eight German
states that restrict the wearing of religious symbols, and how they are applied
in practice, Human Rights Watch has found that they contravene Germany's international obligations to guarantee individuals the right to freedom of
religion and equality before the law. These laws (either explicitly or in their
application) discriminate against Muslim women, excluding them from teaching
and other public sector employment on the basis of their faith.

Those states that ban religious clothing but still allow
Christian symbols explicitly discriminate on the grounds of faith. In any event,
in all eight states the ban is applied specifically against Muslim women who
wear the headscarf. In practical effect, the ban also discriminates on the
grounds of gender. The measures effectively force women to choose between their
employment and the manifestation of their religious beliefs, violating their
right to freedom of religion and equal treatment.

International human rights standards protect the rights of persons
to be able to choose what they wish to wear, and in particular to be able to
manifest their religious belief. Restrictions should only be implemented where
fully justified by the state, and be the least restrictive necessary.

Policies and laws in countries that force women to wear the
veil have repeatedly been criticized by Human Rights Watch. But laws such as in
the German states, which exclude women who wear the headscarf from employment,
also run foul of these international standards. These bans on wearing the
headscarf in employment undercut individual autonomy and choice, privacy, and
self expression, in similar ways to how they are violated in countries where
women are forced to wear the headscarf.

Such restrictions require detailed justifications, including
why they are needed now, when they were not required until the recent past, and
why they are in practice only applied against Muslim women. Sufficient
justifications have not been provided. While there may be legitimate grounds
for some regulation of religious symbols and dress in employment for civil
servants and teachers, the current wide-ranging and discriminatory restrictions
adopted in German states have not been shown to be proportionate to their
stated aim, and therefore amount to unlawful discrimination under international
human rights law as well as violation of the rights of religion and privacy of
those affected.

These regulations are not abstract concerns. The
restrictions have a profound effect on women's lives, as was described by women
affected who spoke to Human Rights Watch.

In those states with bans in effect, women wearing the
headscarf are not permitted to work as teachers. Immediately after the new laws
came into effect, teachers were asked to remove the headscarf and were reprimanded
if they refused to do so, and in some cases even dismissed. Teachers, some with
many years of employment, have been threatened with disciplinary action if they
continue to wear the headscarf, and have been subject to disciplinary action in
North Rhine-Westphalia and Baden-Württemberg.

Although those who have permanent civil servant status enjoy
greater protection, they may still be removed from their teaching position and
may lose their civil servant status if they continue to wear the headscarf and
fail with legal challenges. Muslim trainee teachers have been denied subsequent
employment as teachers after successful completion of their education, unless they
take off their headscarves.

These restrictions have led some women to leave their home
state or leave Germany altogether, to prolong maternity and other leave from
their employment, or to leave teaching after years of studies and investment in
developing their skills. Women concerned feel alienated and excluded, even
though many had lived in Germany for decades or even their entire lives, or are
German-born converts to Islam.

These bans are not necessary, as accommodation based on
mutual respect is possible. Human Rights Watch spoke to many affected women who
sought compromise and were willing to consider alternatives to the headscarf (such
as large hats and untypical styles of tying the scarf),
that would still allow them to comply with their religious obligations.
Accommodation will require the states to genuinely consult across society, act
in good faith, and seek workable solutions.

Where there are concrete concerns that a teacher's conduct
infringes neutrality, those concerns should be dealt with through ordinary
disciplinary procedures on a case-by-case basis. Teachers should be assessed on
the basis of their actions, not views imputed to them by virtue of the
manifestation of their belief. Such outright and discriminatory bans as the
eight states have imposed are neither justified nor necessary.

Methodology

This report is based on research conducted between April and
November 2008. During the course of the research we carried out a total of 72
interviews in Berlin, Hamburg, Baden-Württemberg, Lower Saxony, Hesse, North
Rhine-Westphalia, and Bavaria. In addition a further 12 phone interviews were
conducted with persons in North Rhine-Westphalia, Lower Saxony,
Baden-Württemberg, Hesse, and Schleswig-Holstein. States examined for this
research were targeted to represent all existing categories of approaches to
this issue.

Among the interviewees were 34 Muslim women resident in Germany affected by state restrictions on the headscarf, including converts. Face-to-face interviews
were conducted in German both privately and in group settings in their homes,
mosques, and other public places. The majority of interviewees were identified
with the assistance of an informal network in North Rhine-Westphalia (the state
with most cases) composed of teachers, trainee teachers, students, and social
workers specializing in education (known as "social pedagogues") who wear the
headscarf.

Human Rights Watch also interviewed officials in relevant
state ministries, as well as politicians, party spokespersons, representatives
and parliamentarians in the states under analysis. Other persons interviewed
included lawyers engaged in relevant court cases, academics, and members of
civil society such as research institutes, foundations, NGO representatives
(including anti-discrimination organizations and Muslim organizations), state
institutions, and union representatives.

The identity of interviewees has been disguised with
pseudonyms in many cases, and in some cases certain other identifying
information has been withheld, to protect their privacy. Identifying
information for other individuals has been withheld in some cases for the same
reasons. Interviewees whose real names are used gave their permission. All
participants were informed of the purpose of the interview, its voluntary
nature, the ways in which the data would be collected and used, and the purposes
and advocacy plans of the research and report, and consented to be interviewed.

In addition to our field research, we analyzed existing laws
and regulations, reviewed press reports, and examined studies by academics and
civil society. Other sources of information included court judgments,
government press releases and statements, parliamentary materials (including
minutes of plenary proceedings), NGO reports and position papers, public
initiatives, academic studies and articles, and news reports.

The research also involved legal and policy analysis
(including national constitutional, anti-discrimination, administrative, and
labor law). The legal analysis not only included a thorough analysis of legal
regulations in different German states in the framework of human rights law,
but also of existing jurisprudence of courts at various levels.

Key Recommendations

State governments should repeal legislation on religious
dress and symbols and ensure that their legislation and procedures are
compatible with Germany's international human rights obligations,
guaranteeing in particular that these do not discriminate on grounds of
gender or religion.

Should concrete concerns arise that a teacher's conduct
infringes neutrality, those concerns should be dealt with through ordinary
disciplinary procedures on a case-by-case basis.

The Federal Anti-discrimination Office should issue public
opinions assessing the discriminatory impact of state legislation
restricting the headscarf and the compatibility of such legislation with
the Equal Treatment Act.

The United Nations special rapporteur on the freedom of religion
or belief should conduct a country visit to Germany to assess the
compatibility of measures in place in Germany banning religious symbols
and clothing in public employment with international human rights law, and
issue concrete recommendations for remedying abusive policies and
practices.

II. Background

Germany has a federal system of government, with its 16
states (Länder) enjoying substantial legislative and judicial autonomy,
through state parliaments and courts. The competence to regulate school policy,
education, and cultural affairs belongs largely to the states. At the same
time, states in Germany are bound by the German constitution (Basic Law)[2]
and by rulings of the Federal Constitutional Court.

Within a total population of 82 million, Germany has an estimated Muslim population of between 3.2 and 3.5 million,[3]
about 1 million of whom are German citizens.[4] Islam is the
second largest religion in the country after Christianity. The Muslim community
includes various religious orientations, such as for instance Sunnis, Shiites,
Ahmadis, and Alevi, and those who are secular.

Many Evangelical Churches and the Roman Catholic Church, a
number of minority Christian churches including Jehovah's Witnesses, and the
Central Council of Jews, other Jewish organizations, and Kultusgemeinden
have received the status of publicly recognized corporations ("Körperschaften
des öffentlichen Rechts")-legal bodies under public law. This status
includes a number of privileges such as the right to levy taxes on their
members, with the help of state agencies. No Muslim congregation has obtained
this status.[5]

The majority of Muslims in Germany originate from Turkey. They were originally considered as "guest workers" (Gastarbeiter)-a term that
suggests they are temporary residents who will eventually leave. However, the
majority has now settled permanently, been joined by their families, some have
acquired citizenship and, as one study found, they have "established a wide
range of Islamic political and socio-religious organizations."[6]

Baden-Württemberg, Bavaria, Hesse, and North
Rhine-Westphalia are the states with the largest populations of Turkish origin.
Berlin and Lower Saxony also have a high number of Turkish migrants.

There were a few court cases involving the Islamic headscarf[7]
in Germany beginning in the 1980s. Most related to passport and identification
pictures, and most resulted in the women being permitted to wear their
headscarves.[8]
They received little attention from the public or politicians. It was not
until the end of the 1990s that there began to be public debate in Germany about Muslim women wearing the headscarf in employment, leading to the first high-profile
court cases. According to one analysis, the timing is also linked to increased
enrollment in German universities by Muslim women who then began to seek work
in teaching.[9]

The most influential case involved a woman named Fereshta
Ludin. She applied in 1998 for a teaching job in Baden-Württemberg (see box
below). Her case was eventually heard by Germany's highest court, the Federal
Constitutional Court, and its outcome in September 2003 had a profound impact
on the headscarf issue.

Although the court ruled unconstitutional the decision by Baden-Württemberg
to deny Ludin employment as a public school teacher because she wore a
headscarf, it did not question the constitutional ability of states to enact
laws imposing such restrictions per se.

Fereshta Ludin was born in Afghanistan in
1972, lived in Saudi Arabia, and came to Germany in 1987. She attended
university in Baden-Württemberg, qualifying to become a school teacher in
German, English, and civics, for elementary and secondary school. She became a
German citizen in 1995. Fereshta Ludin has worn the headscarf since the age of
12, a decision she says was her own, and not influenced by her parents. She
already faced obstacles in 1997 getting a position as a trainee teacher, due to
her wearing the headscarf, but was ultimately allowed to finish her education.
In 1998 she applied for a position as a teacher in Baden-Württemberg state's
school system, but was rejected. This refusal of employment of the Oberschulamt
Stuttgart [Supervisory School Authority of Stuttgart] was based on her
insistence that she be allowed to wear her headscarf while teaching, which the
authority deemed made her lacking in personal aptitude, and unsuitable and
unable to perform the duties of a public servant in accordance with the German
Basic Law. It was never disputed that she was fully qualified to work in this
profession and there had been no complaints by parents, children, or the school
about her behavior during her preparatory service.

Ludin sought unsuccessfully to challenge
the denial through the administrativecourts in the state and the Federal
Administrative Court, starting in 1998. In 2002 she appealed to the Federal
Constitutional Court, challenging the constitutionality of her ban from public
service.

On September 24, 2003, the majority of the
Federal Constitutional Court (five judges out of an eight-judge panel) ruled
that there was no legal basis for the refusal to employ Ludin as a teacher
because of her wearing the headscarf, and that the refusal violated her
fundamental constitutional rights.

The Constitutional Court ruled that any prohibition must be
based on a clear statutory foundation. The Court outlined that
state "neutrality" in public schools could mean "open inclusive neutrality"
which permits all religions-accepting the increasing variety of religions at
school and using it as a means for practising mutual tolerance and in this way
making a contribution to the attempt to achieve integration. Or it could mean
"strict distanced non-religious neutrality." If the
state were to tolerate a teacher's being in religious dress at school by their
personal decision, this cannot be treated in the same way as a state order to
display religious symbols at school (for example, Christian crosses in school
buildings). The court made clear that permitting individual "religious"
statements by teachers through their clothing should not necessarily be
considered as endorsement by the state. The ruling emphasized Ludin's
basic right to religious freedom. But it also referred to conflicting
constitutional rights, including the interest of the parents, the
constitutional right of pupils of freedom from religion and the possible impact
on pupils of being unavoidably confronted with a teacher's manifestation of
religion, as well as the danger of interference with the peace of the school.

These dangers, the court admitted, are "abstract," and need
not necessarily occur in reality. The mere potential that in-school conflicts
may arise between the competing constitutional interests of the teachers,
parents, and students is insufficient to resolve constitutional balancing of
interests. However, if states wish to eliminate even such abstract dangers, it
concluded, they must do so by regulating the problem in the applicable School
Act or similar specific laws. Resolving this tension includes, the court
mentioned, the possibility that the individual Länder may make different
provisions, which may also take into account school traditions, the composition
of the population by religion, and whether the population is more or less strongly
rooted in religion. However, any regulation as well as its justification and
the practice of enforcing it, the court also pointed out, must strictly treat
all religions and religious communities equally, in law and in practice.

Fereshta Ludin won and lost at the same
time. Predictably, Baden-Württemberg's government swiftly enacted a relevant
law for public schools. While Ludin's case was remanded back by the
Constitutional Court to the Federal Administrative Court for further
proceedings, the Federal Administrative Court upheld Baden-Württemberg's new
law. In the end, Ludin had had enough of the pressure and decided to abandon
further appeals. She is now employed in a private Islamic elementary school in
Berlin.

The judgment left open the possibility of states enacting a
total ban of religious symbols or guaranteeing religious plurality in school,
and left it to the state governments to determine which approach to adopt.

In the aftermath of Ludin case, the legislatures in half of Germany's states moved quickly to enact laws banning public school teachers from wearing
religious symbols and clothing-with the actual initial target being headscarves-in
school. In two states, the ban was extended to other civil servants. The
remaining half decided ultimately not to enact specific legislation to ban or
otherwise regulate headscarves (three discussed proposals for bans, but those
proposals were later rejected by the majority in the state parliament, or
abandoned).

State bans on the headscarf were subsequently litigated in
state courts. Some cases have been dealt with by labor courts (which hear
employment disputes)-at first instance in local labor courts and on appeal in
the relevant state labor court. Others have been heard in the general administrative
courts (which deal with civil service law and education cases, among other
issues)-at first instance in local administrative courts and on appeal in the
relevant state administrative court.

Legislation and cases on the headscarf issue attracted wide
publicity in the media, in politics, and with the public, leading senior
politicians to comment on the issue. Gerhard Schröder, Germany's then-chancellor, said in a 2003 interview that there was no room for headscarves in the
public service.[10]
Renate Schmidt, minister for women from 2002 until 2005, also spoke out against
the headscarf, as did a number of MPs of Turkish origin in the Bundestag. By
contrast, Marieluise Beck, then-commissioner for migration, refugees and integration,
spoke out against the restrictions, together with other prominent women
politicians.[11]

Proponents of restrictions on the headscarf

Women's equality

Many supporters of headscarf bans-including the editor of the feminist magazine Emma, Alice Schwarzer,[12]
and social scientist and writer Necla Kelek,[13] lawyer
Seyran Ates,[14]
and other commentators with a Turkish background-express their arguments
using the language of women's rights.[15]
Proponents argue that the headscarf oppresses women and violates the
constitutional principle of gender equality, and see restrictions on it as a
positive element that upholds women's rights.[16]

It is also argued that the ban offers a form of protection
against possible compulsion and pressure on women and girls by their
communities to wear the headscarf. At the same time, it is argued, teachers who
wear the headscarf will not be able to support girls who are fighting their
family and community in order to choose not to wear the headscarf.[17]

The "neutrality" of the state

The principle of state neutrality refers to the duty of the
state to preserve neutrality in ideology and religion. The Constitutional Court
has determined that the principle derives from the Basic Law.

Some proponents of state legislation restricting the
headscarf and other religious clothing-including Social Democratic Party (SPD)
politicians in Berlin and Bremen, and Lale Akgün, an SPD MP of Turkish
origin-claim that it is designed to ensure the neutrality of the teaching
environment and public services as well as the "political and religious peace"
of the school and of the state. They argue that the wearing of headscarves by
teachers must be prohibited to protect pupils from what they describe as a
freedom not to be confronted by a teacher (who represents the state and the
school) manifesting a particular religion.[18] State officials
emphasize the importance of this principle (and protection from any possible
indoctrination) in Germany, which imposes and implements strict compulsory
school attendance (almost no home schooling is possible).[19]

Some Church representatives and (mainly Christian Democrat)
politicians justify privileging Christianity in restrictions on the grounds
that it is an integral part of German culture and the German value system. To
them, the headscarf represents a threat to the Christian heritage that
underpins German constitution values. By this logic, Christian symbols are not
considered a threat to the principles of the constitution because they are
cultural rather than religious and therefore neutral.

Islam and integration

In Germany, as elsewhere in Europe, the debate over the
headscarf has intertwined issues of religious freedom with concerns over
religious fundamentalism and the political use of religious symbols such as the
headscarf. Some proponents of restrictions on the headscarf, including some
Turkish organizations in Germany, women with a Turkish migrant origin, some
feminists, the Christian Democratic Party, and the right-wing national parties The
Republicans and the German People's Union (DVU) believe that Islamists
pose a threat to the state as well as rights and freedoms of women, and that
religious movements have a plan to eliminate secular structures slowly, with
the acceptance of the headscarf being the first step, which will be followed
by new demands.[20]

The secular Turkish Community in Germany (TGD)[21]
and Turkish Union in Berlin-Brandenburg (TBB) have repeatedly warned against
tolerance of the headscarf. The TGD favors a secular approach with the
prohibition of all religious symbols in schools and throughout the whole civil
service, and has been critical of headscarf regulations that exempt Christian
symbols on the grounds that they discriminate against Muslims.[22]

Some politicians and feminists in Germany also argue that
the headscarf hinders the integration of Muslim women in Germany, and that restrictions on the headscarf in teaching and the civil service send a clear
signal in favor of integration, to the benefit of young Muslim women.[23]

III. Germany's Human
Rights Obligations

Germany is a state party to the International Covenant on
Civil and Political Rights (ICCPR),[24]
the International Covenant on Economic, Social and Cultural Rights (ICESCR),[25]
the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD),[26]
and the International Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW).[27]
It is also a party to the European Convention for the Protection of Human
Rights and Fundamental Freedoms (hereafter, European Convention on Human
Rights).[28]

The European Convention and its protocols have been
incorporated into German law by the federal legislature, giving them the status
of federal German statutes (Gesetzesrang).[29]
German courts must observe and apply the Convention in interpreting national
law.

As a member of the European Union, Germany is required to
implement all EU law, as, essentially, part of domestic law.

To eliminate all forms of discrimination against women, as
CEDAW requires, Germany needs to address instances where women suffer from multiple
and intersectional discrimination (such as suffering discrimination both on
grounds of gender and of religion). It is important to note that gender-neutral
laws and policies can perpetuate gender inequality if they disproportionally
affect women in practice.

Gender Equality

Under international human rights law, Germany is required to
respect the human rights of women, including their right to privacy and self
expression, and to ensure that they are treated equally and without
discrimination.

Through its ratification of CEDAW in 1985, Germany assumed the obligation to take action to end discrimination against women in all its forms.
The treaty commits States to eradicate "any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women..., of
human rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field."[30]

The treaty obliges Germany "to refrain from engaging in any
act or practice of discrimination against women and to ensure that public
authorities and institutions shall act in conformity with this obligation
[and]… to take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute
discrimination against women,"and to eliminate discrimination
against women in public life.[31]

The UN Human Rights Committee (which oversees state
compliance with the ICCPR) has stressed that states are responsible to ensure
to men and women equally the enjoyment of all rights provided for in the ICCPR
without discrimination, by taking all necessary steps, including the removal of
obstacles to the equal enjoyment and the adjustment of domestic legislation.[32]

The Human Rights Committee has also emphasized "that any
specific regulation of clothing to be worn by women in public may involve a
violation of a number of rights guaranteed by the [ICCPR], such as: article 26,
on non-discrimination; … articles 18 and 19, when women are subjected to
clothing requirements that are not in keeping with their religion or their
right of self-expression; and, lastly, article 27, when the clothing
requirements conflict with the culture to which the woman can lay a claim."[33]

The ICCPR also provides for protection against the effect of
any laws and practices that may interfere with women's right to enjoy privacy
and other rights under article 17 on the basis of equality with men.[34]
The right to a private life is also well established in the European Convention
on Human Rights.[35]
The right to freedom of expression is set out in the ICCPR and ECHR.[36]

In Germany, equality before the law and the protection of
all individuals from discrimination is a human right that is enshrined in article
3 of its Basic Law, which states that "[n]o person shall be favored or
discriminated because of sex, parentage, race, language, national or social
background, faith, or religious or political opinions."[37]

Nondiscrimination in
Employment

Discrimination in employment on the grounds of gender or
religion is widely prohibited under human rights treaties, including CEDAW, the
ICCPR, and the European Convention on Human Rights[38]

The ICCPR requires Germany to provide equal access to public
service for women and men, and the Human Rights Committee has affirmed that the
obligation includes the need for effective and positive measures to promote and
ensure women's participation in high-ranking civil service positions and the
judiciary.[39]
Practices that discriminate against women with regard to access to better paid
employment also violate article 26 of the ICCPR.

Under CEDAW, Germany must take all appropriate measures to
eliminate employment discrimination against women in order to ensure the right
to the same employment opportunities, including the right to free choice of
profession and employment.

Germany has further obligations in this area through its
membership of the International Labour Organization (ILO) and as a party to the
ILO Convention dealing with discrimination in employment.[40]
The ILO's Committee of Experts has expressed concern about governments' restrictions
on employment based on religious practice.[41]

EU Directive 2000/78/EC (the "Employment Directive") sets
out a framework for the elimination of direct and indirect discrimination on
grounds including religion and belief, in employment and occupation. It
required member states to implement the provisions in national laws and
regulations by 2003. As with discrimination on the grounds of sex, EU law does
not allow for any justification for directly treating someone less favorably on
the ground of religion (which is direct discrimination). Apparently neutral
provisions which nevertheless would put persons of a particular religion under
a disadvantage are also prohibited, as indirect discrimination, unless they can
be shown to be carried out for a legitimate aim and be a proportionate means of
meeting that aim.

The long-standing EU law prohibiting discrimination on the
grounds of sex in employment was recently consolidated in Directive 2006/54/EC.
Germany, like all EU states, was required to implement the provisions of this
Directive in its domestic law by 15 August 2008.[42]
The Directive includes a requirement that the law prohibit all direct or
indirect discrimination on the grounds of sex, in the public or private sectors
in employment or working conditions.[43]

The German General Act on Equal Treatment (Allgemeine
Gleichbehandlungsgesetz, AGG) transposing the EU Directives on Equal
Treatment came into force on August 18, 2006.

Germany's Basic Law guarantees the right to free choice of
occupation.[44]

Freedom of Religion

Human rights law requires Germany to ensure religious
freedom for all its inhabitants. Universal and regional human rights instruments,
including the ICCPR and the European Convention on Human Rights, refer to a
person's freedom "to manifest his religion or belief in worship, observance,
practice and teaching." [45]

Article 18 of the ICCPR upholds individuals' rights to hold
and to manifest their religious beliefs. According to the UN Human Rights
Committee, "The concept of worship extends to […] the display of symbols … The
observance and practice of religion or belief may include not only ceremonial
acts but also such customs as … the wearing of distinctive clothing or head
coverings."[46]

Article 2(1) of the ICCPR affords basic rights to all
individuals without distinction or discrimination on any grounds including
religion. In addition, article 26 places an obligation on states to ensure that
"the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as…
religion."

The Human Rights Committee has called on states to address
the disproportionate impact of religious discrimination on women and emphasized
"states parties must take measures to ensure that freedom of thought,
conscience and religion … -including the freedom … to express one's religion or
belief-will be guaranteed and protected in law and in practice for both men and
women, on the same terms and without discrimination."[47]

Freedom of religion is strongly formulated in the German
Basic Law.[48]
It recognizes the importance of equality, repeatedly emphasizing the right to
the equal protection and enjoyment of rights and privileges, including the
right to freedom of religion.[49]
Unequal treatment of different religious groups violates the Basic Law.

Limitations on religious freedom

Religious freedom is a qualified right under human rights
law.[50]
Broadly speaking, limitations on the religious freedoms of individuals are
permissible only where they are prescribed or determined by law and are deemed
necessary in a democratic society to protect public safety, public order,
health, or morals, or the fundamental rights and freedoms of others.

By contrast, the German Basic Law contains no statutory
reservation on freedom of religion. As a consequence, restrictions on religious
freedom will only be deemed compatible with the law if they serve to protect
directly other fundamental rights or similarly important objects of legal
protection.[51]

In its General Comment on religious freedom, the UN Human
Rights Committee has clarified, "Restrictions may not be imposed for
discriminatory purposes or applied in a discriminatory manner."[52]
Limitations are therefore not permissible if they violate the right of women to
equality. The committee also observed that since the concept of morality
derives from many social, philosophical, and religious traditions, any
limitations on religious freedom justified for the purpose of protecting morals
must be based on principles not deriving exclusively from a single tradition.[53]

Article 9(2) of the European Convention on Human Rights
justifies limitations on freedoms of thought, conscience or religion, and
expression only on the grounds of necessity. The European Court of Human Rights
has clarified in the context of limitations on free expression that necessity
implies the existence of a "pressing social need."[54]
While States Parties have a certain margin of appreciation in assessing whether
such a need exists, the restriction must be construed strictly, in the form of
law, and the need for any restrictions must be established convincingly.

The UN special rapporteur on freedom of religion or belief
has developed a set of general criteria in order to evaluate-from a human
rights law perspective-restrictions and prohibitions on wearing religious
symbols. According to her analysis, the following factors show "legislative and
administrative actions which typically are incompatible with international
human rights law":

The limitation amounts to the
nullification of the individual's freedom to manifest hisor her religion or belief;

The restriction is intended to or leads
to either overt discrimination or camouflageddifferentiation depending on the religion or belief involved;

Limitations on the freedom to manifest a
religion or belief for the purpose ofprotecting morals are based on principles deriving exclusively
from a singletradition;

Exceptions to the prohibition of wearing
religious symbols are, either expressly ortacitly, tailored to the predominant or incumbent religion or
belief;

In practice, State agencies apply an
imposed restriction in a discriminatory manner orwith a discriminatory purpose, e.g. by arbitrarily targeting
certain communities orgroups,
such as women;

No due account is taken of specific
features of religions or beliefs, e.g. a religionwhich prescribes wearing religious dress seems to be more
deeply affected by awholesale
ban than a different religion or belief which places no particular
emphasison this issue;

Use of coercive methods and sanctions
applied to individuals who do not wish to wear religious dress or a
specific symbol seen as sanctioned by religion. This would include legal
provisions or State policies allowing individuals, including parents, to
use undue pressure, threats or violence to abide by such rules;[55]

According to the special rapporteur, a prohibition on
wearing religious symbols that is based on mere speculation or presumption
rather than on demonstrable facts is regarded as a violation of the
individual's religious freedom.[56]

Right to a Private Life

The right to a private life is protected both by the ECHR
and the ICCPR.[57]
As with the right to religion, a state can only restrict this right if such a
restriction is carried out for a legitimate aim, is nondiscriminatory, and the
extent and impact of the restriction is strictly proportionate to meeting the
aim. It is for the authority to justify its restriction.[58]

Minority Rights

Under article 27 of the ICCPR, in states where religious
(and other) minorities exists, members of those minorities shall not be denied
the right, in community with the other members of their group, to profess and
practice their own religion.

The UN General Assembly Minorities' Declaration adds to this
by stating, in article 1, that States "shall protect the existence and …
religious … identity of minorities within their respective territories and
shall encourage conditions for the promotion of that identity."[59]

Germany is also party to the Council of Europe's Framework
Convention on National

Minorities, which requires states to respect the religious
rights of minorities. Article 6 of the Convention obliges states to encourage a
spirit of tolerance and intercultural dialogue and take effective measures to
promote mutual respect and understanding and cooperation among all persons
living on their territory, irrespective of those persons' ethnic, cultural,
linguistic, or religious identity, in particular in the fields of education,
culture, and the media.

However Germany has, unilaterally, stated it will only apply
this Convention to only four groups it considers "historic" minorities: Danes,
Sorbs, Roma/Sinti, and Frisians.[60]

The European Court of
Human Rights and the Headscarf

The bulk of international law that could apply to this
issue, in particularly that deriving from the UN human rights treaties and the
EU anti-discrimination laws, requires Germany to positively protect the rights
of members of its Muslim religious minority to publicly express their religion,
and strictly prohibits discrimination on the grounds of religion or gender.

Unfortunately, the European Court of Human Rights has
adopted an approach to restrictions on the wearing of headscarves (and recently
turbans) that Human Rights Watch believes allows states to violate the rights
of members of non-Christian religions who wish to wear specific clothing in
public for religious reasons. The approach of the European Court over a series
of cases has failed to give proper weight to the need for states to have strong
justifications for such restrictions; the impact these restrictions have on the
lives of the people concerned; and the discriminatory impact of bans that predominately
apply to women and girls wearing headscarves.

In the 2001 case of Dahlab v. Switzerland, the court
dismissed as inadmissible an application by a pre-school teacher in the canton
of Geneva, Lucia Dahlab, who had converted to Islam and who had been prohibited
from wearing a headscarf, after years in the performance of her professional
duties.[61]
The court upheld the government's right to require the Muslim teacher to remove
her headscarf on the grounds that "the ordinance did not target the plaintiff's
religious beliefs, but rather it aimed to protect others' freedom and security
of public order" given that the young children in Lucia Dahlab's classes (ages
between 4 and 8) were "more easily influenced" by such a "powerful external
symbol" than older children.

The court concurred with the view of the Swiss Federal Court
that the prohibition on wearing a headscarf in the context of the applicant's
activities as a teacher was "justified by the potential interference with the
religious beliefs of her pupils, other pupils at the school and the pupils'
parents, and by the breach of the principle of denominational neutrality in
schools."[62]

The court returned to the issue in the case of LeylaŞahin v. Turkey, which concerned the refusal of admission to lectures and examinations in higher
education institutions for students whose heads were covered. The court gave a
wide margin of appreciation to the Turkish authorities and concluded that there
had been no violation of article 9 of the European Convention.

According to the court, preventing adult students who wear
the headscarf from attending university primarily pursued the legitimate aims
of protecting the rights and freedoms of others and the protection of public
order, and the interference was based on the principles of secularism and
equality. Secularism in Turkey was consistent with the values underpinning the
convention, it concluded. In the view of the court, "[T]here had to be borne in
mind the impact which wearing such a symbol, which was presented or perceived
as a compulsory religious duty, may have on those who chose not to wear it."[63]

In a dissenting opinion, however, Judge Françoise Tulkens
was of the opinion that article 9 of the ECHR was violated: she disagreed with
the manner in which the principles of secularism and equality were applied by
the majority of the Grand Chamber, that is, the general and abstract appeal to
secularism, and she doubted that the ban was proportionate.[64]
Tulkens sharply dismissed the assumption that the headscarf intrinsically
conflicts with principles of equality.

In November and December 2008, the European Court dealt with
further cases concerning restrictions of religious freedoms for non-Christians,
continuing the line of its previous jurisprudence. In Dogru v. France [65]
and Kevanci v. France,[66]
two 12-year-old girls were expelled from their school in 1999 for refusal to
remove their headscarves during physical education class.[67]
Their parents proposed that they wear hats but this was rejected by their
school.[68]
The European Court found no violation of the right to religion saying the girls
had made an "ostentatious" display, and upholding French secularism, even
though the issue was actually whether a headscarf or hat is incompatible with
physical education class. The court found the expulsions not disproportionate
because the girls could continue their education by correspondence course, and
did not even consider arguments that their right to education was violated.

In Mann Singh v. France, a Sikh who had held driving
licenses for 20 years with his picture showing him wearing a turban was told in
2004 he could not get a new license unless he had a picture without a turban,
which he believed would be a fundamental violation of his religion.[69]
He won a case in France that this decision had no basis in French law, but then
the French government issued a circular saying that in all identity photos the
subject had to be bareheaded. The European Court rejected the case outright on
admissibility, without a hearing. Essentially the court took on board the
government's argument that bareheaded photos were necessary for identification
purposes, not even considering why the authorities were accepting photos with
persons wearing turbans up until 2005.

Human Rights Watch regards the Court's decision in these
cases concerning non-Christian religious clothing (predominately headscarves)
as deeply problematic. Our starting point in this regard is that the European
Court has repeatedly accepted that the wearing of the headscarf is a manifestation
of religion and therefore enjoys in principle the protection of freedom of
religion under Article 9 ECHR.[70]

In Dahlab and Şahin
though, the court gave significant weight to the alleged "danger" that the
wearing of the headscarf posed for the rights of others, but this is a danger
the respective governments produced very little evidence to justify. As Judge
Tulkens underlines, only "indisputable facts and reasons whose legitimacy is
beyond doubt" are capable of justifying interference with a right guaranteed by
the convention.[71]

Human Rights Watch's critique of the Şahin judgment
at the time criticized the court for its willingness to readily accept the
Turkish government's arguments and the limited weight it gave to the impact of
the severe restrictions of rights for Leyla Şahin
and women like her.[72]

In the Şahin
judgment, the European Court effectively watered down the protection of article
9, paying excessive respect, and indeed apparently seeing itself as the
defender of, the secular constitutional traditions of a particular state,
although the Convention should be applied in a way that is consistent across
all member states. In its Şahin
judgment the Court failed to demonstrate what disadvantages or violence women
who do not wear Islamic headscarves would concretely face in Turkey, if Islamic headscarves were permitted in universities.[73]

Furthermore, one of the arguments used against headscarves
in the Şahin
case concerns the presumed link between the practice of wearing Islamic
headscarves and political extremism. While there are certainly extremist
political movements in Turkey, Human Rights Watch has noted in past reports
that the campaign for the right to wear a headscarf has been entirely
nonviolent for more than a quarter of a century.[74]
And as Judge Tulkens noted, the right to freedom of religion and to manifest
religion by an external symbol cannot be wholly overturned by the public
interest in fighting extremism. That fight need not involve prohibiting the
wearing of headscarves by individual women "who engage in this practice not to
support extremism, but for other reasons".[75]

And the lack of understanding of the impact shown by the European Court to those affected by the bans on headscarves and on turbans is in marked
contrast to its approach on cases concerning a need to protect the Christian
religion. This is shown by the famous Otto Preminger-Institute case in
which the Court upheld the seizure by Austrian authorities of a film, as it
could have upset members of the Christian religion. The Court read into article
9 the need to protect the "respect for the religious feelings of believers". [76]
However when it comes to Muslim or Sikh manifestation of belief through
particular clothes, the Court has been prepared to accept the denial of
education to girls and women, or the denial of essential documents such as
driving licenses.

IV. State Bans on Religious Symbols in Public Employment

Eight of the 16 federal states in Germany-Baden-Württemberg,
Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North Rhine-Westphalia, and
Saarland-have enacted legislation to prohibit teachers in public schools from
wearing visible items of religious clothing and symbols. In Baden-Württemberg
and Berlin similar legislation exists for kindergarten teachers also. In Hesse
and Berlin the ban extends to cover some or all other civil servants in the
field of justice[77]
and law enforcement (including judges, prosecutors, police officers, and court and prison officials).

Exceptions are allowed in the context of religious education
in Baden-Württemberg Lower Saxony, Hesse, Bavaria, Berlin, and North
Rhine-Westphalia. Trainee teachers can generally be exempted from these bans,[78]
because the state has the monopoly of training in this field and the freedom of
profession would therefore be infringed, affirmed by a decision of the Federal
Administrative Court in June 2008 (see section below on "Bans without explicit
exceptions for Christian symbols").

Each of the eight states requires teachers
to behave according to the principle of religious, political, and ideological
neutrality. The Muslim headscarf is not mentioned explicitly in the laws, but
has arisen in explanatory documents or parliamentary debates in all eight
states, and all the legal challenges to the ban that have gone before the
courts to date have concerned the headscarf: Since the introduction of
the state laws, there have been at least 20 court decisions in 12 proceedings.

The plaintiffs in these cases include not only trainee
teachers seeking teaching posts but also teachers and social workers
specialized in education ("social pedagogues") already working in education
(sometimes for decades). The vast majority of legal challenges to these laws
have not been successful. Most of the rare decisions in favor of allowing the
headscarf concern trainee teachers.

Bans Exempting
Christian Symbols and Clothing

Five of the states with religious clothing bans-Baden-Württemberg, Saarland, Hesse, Bavaria, and North
Rhine-Westphalia-contain an exception for Christian symbols and clothing,
phrased in references to the exhibition or representation of Christian-Western
educational values, beliefs, and traditions.

After the Ludin decision of the
Federal Constitutional Court (see Chapter II), Baden-Württemberg was the first
state to pass in April 2004 a new law amending its school act regulating the
wearing of religious clothing and symbols by teachers in public schools.[79]

Under the amended school act, teachers at
public schools are not allowed "to exercise political, religious, ideological
or similar manifestations that may endanger or disturb the neutrality of the Land
towards pupils or parents or the political, religious or ideological peace of
the school."[80]
The act deems as "particularly illegitimate" any "behaviour that can appear to
pupils or parents to be a teacher's demonstration against human dignity, gender
equality according to article 3 [of the Basic Law], the rights of freedom or
the free and democratic order of the constitution."

The relevant section of the school act,
however, goes on to say that "[t]he respective exhibition of Christian and
western educational and cultural values or traditions do[es] not contradict [a
teacher's] 'duty of behaviour,'" and correspond to educational objectives. By
enacting this law, Baden-Württemberg intended to prohibit public school
teachers from wearing the Islamic headscarf, while permitting teachers to
continue to wear Christian religious clothing and symbols[81]
such as the nun's habit.[82]

The regulation in North Rhine-Westphalia
adopted in June 2006 mirrors the language of the law in Baden-Württemberg.[83]

Bavaria adopted its restriction on the headscarf in 2004.[84]
Nuns' habits are allowed.[85]In the Bavarian law teachers are not allowed to wear clothing
that is incompatible "with fundamental constitutional values and
educational objectives."[86]
But those values are said to include "Christian-Western"
educational and cultural values.[87]

The regulation in Saarland adopted in June
2004 emphasises Christian values and traditions: "The School has to teach and
educate pupils on the basis of Christian educational and cultural values
showing due respect for the feelings of differently minded pupils."[88]

In Hesse, a very strict law was adopted in 2004, which bans
all civil servants including public school teachers, from wearing religious
clothing and symbols that may jeopardize the "neutrality of the administration
and state" or endanger the "political and religious peace" in the state.[89]
To determine what is banned under this law the "humanist- and Christian-
influenced Western tradition of the Land of Hesse has to be taken into due
account".

Justifications for the restrictions

The state governments in Baden-Württemberg, Bavaria,
Saarland, and North Rhine-Westphalia have argued that exempting Christian
clothing and symbols (notably nun's habits) from their bans does not privilege
Christianity, because such clothing and symbols are in line with and preserve
values expressed in their state constitutions (themselves influenced by
Christianity).[90]
They claim that Christian clothing and symbols do not therefore risk
compromising the neutrality or peace of the school.

An official from the Bavarian Ministry of education outlined
to Human Rights Watch that "the admittance of Christian clothing and symbols,
such as a nun's habit, in school result from the interpretation of the law. It
does not privilege Christianity, as such clothing and symbols are in line with
the Bavarian constitution. Clothing and symbols of other religions which are
not contrary to the goals and values of the constitution are also allowed."[91]

The governing parties introducing the draft laws in the
North Rhine-Westphalia parliament emphasized the importance of the "Christian
Western and European tradition," arguing that it is "not a breach of the
neutrality requirement if a teacher commits to this tradition."[92]
Accordingly, "the nun's habit and Jewish kippa remain therefore permissible."[93]

Aside from exceptions for Christian symbols, some of these
laws prohibit at first view the wearing of any political and religious clothing
and symbols of belief. But it is clear from explanatory documents, debates in
state parliaments, and statements from state government officials that the
measures are aimed at restricting the headscarf.

The intention of legislators is demonstrated in the
accompanying explanations in 2004 to the draft laws in Bavaria and Saarland, and in 2005 to the draft law in North Rhine-Westphalia. The latter explain that
the headscarf must not be allowed during teaching "because at least a not
insubstantial part of its proponents link it to an inferior position of women
in society, state and family or a fundamentalist statement for a theocratic
political system in contradiction to the constitutional values."[94]
Furthermore, the North Rhine-Westphalia explanation characterizes the headscarf
as a political symbol[95]
(as was also done by Christian conservative politicians in Baden-Württemberg),[96]
and points to the jurisprudence of the European Court of Human Rights (as was also
mentioned during the parliamentary debate in Hesse).[97]

Official hearings on the draft laws in the Bavarian
parliament and the parliament of North Rhine-Westphalia referred to the
"headscarf ban."[98]
Introducing the draft law "on the safeguarding of state neutrality" in the
Hesse parliament, the chairman of the CDU party explained, "[w]ith the draft
law introduced by us we want to forbid Hessian teachers and civil servants from
wearing the Islamic headscarf."[99]

The debate over the law in the North Rhine-Westphalia
parliament featured the following positions from the committee behind the
draft: "The headscarf has meantime become worldwide a symbol of Islamic
fundamentalism. … [It] can be regarded as political symbol of Islamic
fundamentalism, which expresses the dissociation from values of the western
society like individual self-determination and emancipation of women.
…according to the federal constitutional court … it does not depend out of
which motive the teacher is wearing the headscarf but how concerned parents and
pupils perceive it."[100]
Similar statements had been brought forward by the party that introduced the
law in the parliament in Hesse, where in the explanatory statement the ban
expressly relates to headscarves.[101]

In justifying bans on religious dress and symbols, lawmakers
in Hesse and Bavaria have argued that a teacher wearing a headscarf is not in a
position to provide and convey education according to the constitution, in
particular as regards the principle of equality between men and women.[102]

Ministry officials in Hesse to whom Human
Rights Watch spoke argued that the scope of application of the Hessian
neutrality law must not be understood as limited to the headscarf. They
stressed that in Hesse there were, for instance, individual cases of trainee
lawyers participating in public court sessions and public prosecutions, who
wore a ring through the nose or their hair in a brightly-dyed Mohawk and agreed
to change this appearance when objections to it were raised. In other cases the
assignment of chairing a session was refrained from or the hearing was followed
from the seats for the spectators.[103]
Other theoretical examples the officials offered as falling under the scope of
application of the law were cases of men in "Taliban" clothing, traditional
clothing of the Indian Bhagwan movement,[104]or
political expressions of opinion on buttons or t-shirts with statements like
"foreigners out" or "against atomic energy."[105]

An official from the Bavarian Ministry of Education
stated the symbols and clothing to which the law applies would be assessed on a
concrete case by case basis.[106]
The official suggested that the absence of disputes involving teachers affected
by the ban was evidence that the law achieved its aim and functions smoothly.

According to officials in the
Baden-Württemberg Ministry of Education, Youth and Sport interviewed by Human Rights Watch, no concrete disruption of the
school peace is needed to justify the ban in that state-abstract endangerment
is sufficient.[107]
The officials suggested that the only acceptable alternative to a headscarf
would be a wig looking like a normal hairstyle.[108]
According to the law trainee teachers can be exempted from the ban, which they
are in practice, and in cases where trainee teachers wearing the headscarf
would face problems at school, there would be a change of school.[109]

Approach of the courts

Restrictions on the headscarf for teachers have been upheld
by courts in Baden-Württemberg and North Rhine-Westphalia in several cases involving
individual challenges to the bans. In addition, courts in Baden-Württemberg,
Bavaria, Hesse, and North Rhine-Westphalia have issued rulings upholding or
clarifying the bans.

Baden-Württemberg

Baden-Württemberg's law was the first to be tested in the
courts. As noted above, the Federal Administrative Court considered the new law
in the context of Fereshta Ludin's case in June 2004.[110]
The court upheld the decision by the Supervisory School Authority of Stuttgart
to deny her employment on the ground that her wearing of the headscarf made
her, under the terms of the new law, "unqualified" for a civil servant public
school teaching position.

In the view of the court, Baden-Württemberg's law trying to ban
an abstract danger struck an acceptable balance between the competing interests
of Ludin's fundamental constitutional rights and those of students and their
parents, and the principle of neutrality.

The attorney (and drafter of the law)[111]
for Baden-Württemberg argued before the Federal Administrative Court that an
Islamic headscarf falls under the law's prohibition against religious symbols
but a nun's habit does not, since the latter constitutes "work attire"[112]
and falls under the law's language excluding displays of Christian and Western
traditions and values from Baden-Württemberg's law's restrictions.[113]

The Federal Administrative Court noted the Federal
Constitutional Court's position that any law must treat different religions
with strict equality, holding that "[e]xceptions for particular forms of
religiously motivated clothing, as contended by the attorney [for
Baden-Württemberg] during oral proceedings, are therefore not permissible."

But it failed to follow the logic of this position when
assessing whether Baden-Württemberg's exception for the "exhibition of
Christian and occidental educational and cultural values or traditions"violates
these equal treatment principles.[114]

The court reasoned that the reference to Christian and
Western values in Baden-Württemberg's law does not create an illegal
preferential treatment of the Christian religion, because this is not, in fact,
the display of an individual religious denomination. "Christian" values and
virtues are actually detached from their religious meaning and should be seen
instead as part of the fundamental values of the Basic Law. In the court's
view, Christian educational and cultural values are ones with which every
public servant should be able to agree, irrespective of his or her religious persuasion.

The effect of this reasoning is to uphold such laws that
give exemptions from bans to the display of Christian and Western values and
traditions, despite the clear intention of the legislator in order to be in
conformity with equal treatment and the Basic Law.

The Federal Administrative Court also held that
Baden-Württemberg's law "does not excessively affect the Islamic religious
community" because "the prohibition is limited to teachers in public schools,"
and thus affects neither the right of students at public schools, nor the right
of teachers at private schools to wear an Islamic headscarf.[115]

Courts in Baden-Württemberg have considered a second case
involving the state's headscarf ban. The case was brought by Doris Graber, a
Muslim convert, who served as a primary and secondary teacher for over 30 years
at the same school in Stuttgart. Graber, who converted to Islam in 1984, began
to wear a headscarf during classes in 1995. In 2004 the school board ordered
her to remove the headscarf in the classroom, or be dismissed from her post.

Graber challenged the decision in the Administrative Court
of Stuttgart. In July 2006 the court ruled that the order for Graber to remove
her headscarf constituted a violation of the principle of equal treatment, since
nuns wearing habits were permitted in a public school in Baden-Württemberg.[116]
It held that the state could not ban the headscarf from Baden-Württemberg's
public schools if nuns were permitted to teach wearing habits.

However, the judgment was overruled by the State
Administrative Court of Baden-Württemberg in March 2008. The court held that
the order was lawful.[117]
According to the court, wearing a headscarf during classes amounted to the
display of a religious symbol contrary to the obligation to keep religious
expression out of the classroom. According to the court, the decision to allow
nuns to wear their habits was "a historic special case under a unique special
contract basis." However, the court went on to find that even if one would have
to consider it an unequal implementation of the law, this would not entitle
Graber to wear her religiously motivated headwear as there is no entitlement to
"equal treatment in unjustness."

North Rhine-Westphalia

Among the five states with bans that carve out exceptions
for Christianity, North Rhine-Westphalia has seen the greatest number of cases
of women challenging the ban, not all of which have resulted in litigation.
There are currently at least seven initial proceedings and lawsuits which have
lead to various court decisions.

According to a February 2007 statement from the state's
school minister, there were at the time 12 teachers wearing the headscarf
employed in the state, some of them with the status of civil servants
(permanent career state employees).

The Administrative Court of Düsseldorf[118]
judged in June 2007 in first instance that a trainee teacher who refused to
remove her headscarf could not become a teacher in the state. In a decision
that defies logic, the court held that while the exception clause of North
Rhine-Westphalia cannot be a justification for Christian or Jewish clothes or
symbols worn by teachers, the ban did not need to apply to nuns teaching in
public schools in the state, since these were rare exceptions and therefore did
not constitute a so-called 'deficit of execution' (Vollzugsdefizit) of
the law.

The Düsseldorf court reached a similar conclusion in August
2007 in the case of Mariam Brigitte Weiss, determining that it did not make a
difference that she wore her headscarf in the 'Grace Kelly style'[119]
(and she was still perceived as obviously manifesting her religion by doing
so).

Similar arguments to those of the judgments of the
Administrative Court of Düsseldorf can be also found in rulings in other cases
decided by administrative or labor courts in the state (for example
Administrative Court Aachen, November 2007; Administrative Court Gelsenkirchen,
February 2008; Labor Court Düsseldorf, June 2007;[120] Labor
Court Herne, March 2007 (and State Labor Court, October 2008).[121]
In addition, in July 2008, the Labor Court Wuppertal threw out the case of a
Muslim teacher, previously employed since 2002 and who had been fired after
refusing to take off her headscarf during teaching (having received a previous
warning).[122]

A June 2007 ruling by the first instance labor court in
Düsseldorf drew a lot of public attention. It concerned a social worker
specializing in education who had worn a headscarf for some years while working
in a school, replacing it with a rose-colored "beret" which fully covers her
hair and ears, following the new school act. The court judged that the function
of the beret was the same as the function of a headscarf. In April 2008 the State Labor Court affirmed the lower court's ruling in the case.[123]
According to the State Labor Court, the teacher expressed her religious belief
by wearing the hat, thereby violating neutrality and the "negative" religious
freedom of pupils. The teacher refused a proposed settlement to wear a wig
instead. The first instance administrative court in Cologne employed similar
reasoning in an October 2008 judgment in the case of a Muslim teacher who had
worn a beret while teaching since 2006 (and previously a headscarf).

As is evident from the above cases, courts in North
Rhine-Westphalia have applied the prohibition on the headscarf for teachers in
a strict way that does not tolerate substitutes that cover the hair, shoulders
and ears like a Muslim headscarf, and still consider them a religious symbol.
The courts' rulings declare essentially that no options are available to the
observant Muslim woman who wants to abide by what she considers a religious
duty, even if the method used is not a recognizable religious symbol or has no
conceivable associations of fundamentalism, such as a pink woolen hat.

Bavaria, Hesse, and Saarland

The Constitutional Court of Bavaria upheld the state's law
restricting religious dress in schools as compatible in principle with the
Bavarian Constitution in January 2007.[124] It determined
that detailed interpretation on its application in individual cases would have
to be done by the specialized courts. However the court also stated that the
legislature can allow certain symbols and clothing expressing religious or
ideological belief, subject to their being compatible with the basic values and
educational goals of the Constitution.

On December 10, 2007, a six-to-five majority of the
Constitutional Court of Hesse upheld the state's law restricting religious
symbols as compatible with its constitution.[125] The ban was
challenged in April 2005 by the Landesanwältin, the lawyer responsible
for verifying the constitutional compliance of all legislation enacted in the
state. She argued that the ban was in violation of the freedom of religion as
well as discriminatory and called for it to be lifted.

The majority in the Hesse Constitutional Court held that
taking into account the Christian/Western tradition of Hesse in rulings on
religious symbols would not represent a privilege for the Christian religion,
but would simply reflect the fact that clothing and symbols in line with those
values expressed in the constitution do not threaten neutrality or peace in
school. The ruling applies only to the actual text of the law rather than to
its application and does not state whether Islamic headwear is within the scope
of the law. As in Bavaria, the application of the law is left to courts dealing
with actual cases.

Neither judgment offers a clear answer as to whether
Christian clothing would in fact be exempt, a matter left for lower courts in
each state. Both courts affirm the duty of civil servants to behave neutrally,
even at the expense of the right to religious freedom and of a private life.

At this writing, there have been no court cases in Hesse involving teachers. Human Rights Watch is aware of five cases involving trainee
teachers who wear the headscarf where objections have been raised. According to
officials in Hesse, in each case schools have been found to enable the women to
carry out the practical part of their education.[126]

At this writing, there have been no court cases in Saarland.

Bans without Explicit
Exceptions for Christian Symbols

The laws in Bremen and Lower Saxony rely on the preservation
of the neutrality of the school and the peace in school as the basis for
restricting religious dress in schools. But unlike the laws in the five states
above, the laws in Bremen and Lower Saxony state do not contain explicit
exceptions for the Christian faith or western traditions and values.

Bremen's law, introduced in 2005, provides that "the outer
appearance of the teaching and caring staff in school may not be such as to
disturb religious and ideological feelings of pupils and parents or to carry
tensions into school [that] endanger its peace through a violation of religious
and ideological neutrality."[127]
This applies to teachers in preparatory service as long as they teach, that
is, to trainee teachers when they are in the classroom.

Lower Saxony's 2004 amendment of its School Act states that
"the outer appearance of schoolteachers, even if chosen by a teacher due to
religious or ideological reasons, may not create any doubts concerning the
teachers' qualification to convincingly fulfill the educational mandate of the
schools."[128]
This also applies for trainee teachers who have been put in charge of a
classroom, although in individual cases exceptions may be granted.

Despite the ostensible difference between these laws and
those in the five states with explicit exceptions for Christian symbols, the
parliamentary debates and explanatory documents in Bremen and Lower Saxony when
the laws were introduced focused predominantly on the headscarf and mentioned
the recognition of the western cultural tradition shaped by Christianity (and
Judaism).[129]

Furthermore, it should also be noted that although the law
in Lower Saxony only refers to the state's responsibility for education and
appears on first sight neutral, article 2 of the School Act on the state's
mandate for education names Christianity at the top of the list of the bases
for developing further the personality of the pupils following preschool
education. According to the explanatory section of the draft law the wearing of
Christian and Jewish symbols remains possible.[130]

The state of Berlin takes another approach.[131]
Its law, introduced in 2005, and which applies widely to civil servants in the
state, contains a strict secular interpretation of neutrality.
The act prohibits "any visible religious or ideological symbols that signal
[to] the spectator an affiliation to a specific religious or ideological group
and any noticeably religious or ideological imbued garments." It treats all
religions alike, at least as a matter of law.

The law categorically bars all public school teachers
(including kindergarten teachers in the case of parental objections), as well
as police officers, judges, court officials, prison guards, district attorneys
and civil servants working in the justice system, from wearing visible
religious or ideological symbols or garments (with the exception of small
pieces of jewelry).[132]
The latter exception thereby would exclude from the ban, for instance, small
crucifixes as jewelry (although this is a very common way Christians display
their religion.)

Approach of the courts

There have been no cases in Lower Saxony[133]
or Berlin[134]
under their laws. The only court case in Bremen to date concerns a woman
wearing a headscarf whose application for teacher training was rejected.[135]
(As noted above, Bremen does not allow trainee teachers to wear religious dress
in the classroom. With the exception of Saarland's legislation, the other
states that restrict religious dress in schools allow individual exceptions for
trainee teachers[136]).

The trainee teacher won her appeal in the first instance
administrative court in Bremen in 2005.[137] But the decision
was overturned on appeal in the Higher Administrative Court (Oberverwaltungsgericht)
of Bremen.[138]
That decision was reversed in turn by the Federal Administrative Court in June
2008.[139]
Germany's higher administrative court decided that since the state exercises a
monopoly on teacher training, it would amount to disproportionate interference
in freedom to choose one's employment to require persons to remove religious
symbols in order to undergo such training, unless there was shown to be a
concrete danger in relation to school peace and the rights of pupils and
parents.

The positive impact of this ruling will depend on the extent
to which there are meaningful opportunities at private schools for trainee
teachers barred from working as public school teachers because they chose to
wear religious symbols.

States without Bans

At present, eight states in Germany have no special
legislation relating to religious clothing or symbols in employment. Three of
states-Brandenburg, Rhineland-Palatinate, and Schleswig-Holstein-drafted laws.
Brandenburg's and Rhineland-Palatinate's failed to pass and
Schleswig-Holstein's was abandoned by the legislature.[140]
The other five states-Hamburg, Mecklenburg-Lower Pomerania, Saxony,
Saxony-Anhalt, and Thuringia-decided to not enact special legislation.

In each of these states, the wearing of religious symbols
can be prohibited on a case-by-case basis if there is evidence that a person's
actions contravene the neutrality of the school, using existing public services
law that allows for sanctions in well-founded cases.

There have been no relevant court cases in any of the eight
states.

According to several teachers and a civil society
representative interviewed by Human Rights Watch, there have been several cases
where women wearing the headscarf in Hamburg and Rhineland-Palatinate have
faced difficulty finding traineeships or places in schools and have been asked whether
they would take the headscarf off. [141]

It is notable that five of the states that lack bans were
formerly part of the German Democratic Republic (GDR).[142]
These states generally seek to avoid the issue of church-state relations
because of a history of anti-Christian and anti-religious indoctrination and
attacks on religious freedom during the Communist period.[143]
There are also a low number of Muslim migrants living in Germany's East, which partly explains the lack of disputes involving Muslim teachers wearing the
headscarf.

In Schleswig-Holstein, the SPD/CDU coalition government
considered introducing a regulation banning religious symbols in school at the beginning
of 2006.[144]
It was convinced to withdraw the draft legislation after consulting with legal
experts who pointed out that equal treatment of all religions in such a case
would mean a ban of Christian symbols, and with church representatives who
favored the maintenance of religious symbols in schools.[145]

After withdrawing the bill in September 2006, the government
proclaimed that although the duty of religious neutrality for teachers prevails
there should be space for wearing religious clothes including the headscarf. A
CDU contact person from Schleswig-Holstein told Human Rights Watch that there
have been no disputes involving teachers wearing the headscarf in the state,
and that the issue was "not a subject of discussion." [146]
Were there to be concrete problematic cases of proselytizing, he said, the
civil service law would be applied, but this would be based on the person's
behavior not their attire. In his view, the neutrality of the state is not
endangered by the appearance of a headscarf, and in the balance of rights, the
headscarf alone does not justify interference or restrictions.

In Hamburg, the first teacher who wore a headscarf in class,
stating this was because of religious reasons, was employed in 1999.[147]
An official in the education department in Hamburg told Human Rights Watch that
this teacher was employed following an individual case assessment. In addition,
the official said, there had been 2-3 cases where a teacher had converted to
Islam in the course of their professional life. The school authority took no
action in these cases.[148]

There has been an increase in recent years in applications
and expressions of interest from trainee teachers wearing the headscarf wishing
to come to Hamburg from other parts of Germany. The school authority official
reported a dozen applications by trainee teachers with headscarves for the last
due date (none of whom ultimately took up their positions). No trainee teacher
with a headscarf has been refused according to the school authority official,
adding that if there were to be problems in one school, the authority would
search for another school. In the search for schools, the school authority had
so far no problems with parents, with the exception of one single Muslim parent
who opposed a teacher with a headscarf. However after a conversation a solution
was found. There are currently two teachers with headscarves working in the
area of Hamburg (one of whom is the teacher referred to above who started in
1999). There are no cases of teachers with kippa or nuns' habit, nor known
cases of other civil servants.[149]

V. Impact of the Ban on
Teachers and Civil Servants

When the new laws came into effect, teachers, some with many
years of employment, were threatened with disciplinary action if they continued
to wear the headscarf, and have been subject to disciplinary action in North
Rhine-Westphalia and Baden-Württemberg. In at least two cases in North
Rhine-Westphalia teachers (without civil servant status) were dismissed from their
position.

In Berlin and Hesse, whose laws also cover civil servants
other than teachers, there have been a handful of disputes involving "trainee
lawyers" wearing the headscarf, and in Berlin about judicial clerks.[150]

Although those who have civil servant status have greater
protection, they may be removed from their teaching position and may lose their
civil servant status if they continue to wear the headscarf and fail with any
legal case.

Muslim women have had difficulties obtaining places as
trainee teachers, and Muslim trainee teachers have been denied subsequent
employment as teachers after successful completion of their education if they do
not abide by the restriction.

These regulations are not abstract concerns. They have a
profound effect on human lives. Women who spoke to Human Rights Watch described
how after sometimes years or decades working as teachers without disputes or
disciplinary problems, their employment and qualifications were suddenly in question.

The broad scope of the bans, and debates surrounding them, fuel
a perception among Muslim women that they are suspect in the eyes of German
authorities. Maryam (not her real name), an elementary school teacher in North
Rhine-Westphalia who converted to Islam, had worn a headscarf in school for
decades. She explained to Human Rights Watch, "One has the feeling 'we don't
want you'… Where should I go? I belong here.… I would never have thought that
would be possible."[151]
Elma (not her real name), a secondary school teacher who trained in Baden-Württemberg,
said she was the only trainee teacher the supervisory school authority wanted
to meet and get to know.[152]
Other women expressed similar concerns.[153]

Women teachers who wear a headscarf are invariably asked
to explain why they do so, and their independence and views on women's equality
are questioned. Articulating her frustration at the assumptions she saw as
underpinning the ban, Fahimah, an elementary school teacher in Essen (North Rhine-Westphalia), told Human Rights Watch, "Those who made these laws don't
know us." She continued:

They should ask our colleagues, directors, school
inspectors, the parents, the pupils what kind of persons we are. All of them
have experienced me and know me so well, that they can attest for sure that I
am not oppressed and that I do not wear the scarf because of oppression… [The
authorities] cannot just simply allege this; for that they would have to get to
know us to know if we are oppressed women who manifest this through the
headscarf.… One cannot just simply assert this like this. One cannot regard the
headscarf as a symbol for that."

Fahimah added,

There are certainly also persons who neither wear a
headscarf nor are Muslim and are oppressed and where do you see it in their
cases then? I don't understand how one can want to base this on a cloth.'[154]

Sara (not her real name), a teacher at a North
Rhine-Westphalia secondary school echoed these frustrations:

I can imagine that one can come to this conclusion from the
representation of Muslim women in the media. So what? I am not like this.… Many
women with headscarves are not like this and one cannot completely condemn a
religion because of some being like this.… I am an example for integration …
going out, striving for a job, finished my studies, did not marry young and
only after completion of my university education … I chose my husband freely,
not under compulsion, I knew him long before, like it all should be. I was also
not forced to wear the headscarf-I am practically a model of what they look
for. They have now a promotional program for migrant women to study to become a
teacher. Hello? Here I am, take me! It is very sad to be confronted with being
told I am of a type that I also only know from the media. I don't recognize the
person they see me to be.[155]

Women interviewed by Human Rights Watch, even many who had
lived in Germany for decades or even their entire lives, or are German-born
converts, expressed feelings of alienation and exclusion. One group of women
interviewed by Human Rights Watch noted that what was important to them had
been declared to be dangerous.[156]
A Muslim convert elementary teacher from North Rhine-Westphalia described
hearing the news about the ban: "I suddenly felt like a stranger in Germany…I will never forget that."

Martina, a school teacher in Frankfurt, who is trying to
apply for teaching positions in private schools, told Human Rights Watch,

I wear it because I deem it a religious duty for myself. I
needed 10 years to decide [to wear] the headscarf. I will not go and tell a 15-year-old
pupil to wear it. If I would like to influence pupils I could do that also
without a headscarf-it would make more sense. … Through the law they impute to
me a sort of constant Islamic work, which I strongly reject. When I teach
German, I teach German.… Neutrality should have to apply to everybody.[157]

Other women similarly made the point that the ban would not
effectively target possible indoctrination. As one respondent in a group
interview put it, "The headscarf is overestimated. One does not need a headscarf
to manipulate and there are other mechanisms to act against [indoctrination]"[158]

An elementary school teacher in North Rhine-Westphalia
expressed her incomprehension at why her skills and ability to reach out to
migrant pupils and parents were not valued:

The pupils and the parents did not have a problem with it [the
headscarf] … The director said she would get even more problems with the
Muslims than she already has because of me, but on the contrary I could have
helped her and also speak with the Muslim parents, but she did not understand
that.[159]

Women have told Human Rights Watch that they feel "reduced
to the headscarf"[160]-by
the regulations and debates surrounding them. One told us, "You become the
'headscarf woman'"[161]
Another remarked, "Before the headscarf law, I was just simply wearing the
headscarf. Since there is the headscarf law and one is put so much in the
centre of attention I am wearing my headscarf much more consciously.… It feels
like being on show. Everyone looks at you: colleagues, who also follow it in
the press … the situation is disgusting."[162] A third woman
said, "The headscarf was just the 'dot on the i' for me, not so important,
never an issue".[163]

According to the secondary school teacher Sara, demands to
take off the headscarf gave her an impossible decision:

To have to actually imagine coming to school, having to
take of the headscarf and go to the staff room for the first time. When I just
think of it now, it nauseates me. One feels humiliated. It is something else if
I don't want to wear the headscarf anymore and go like this to school, but when
it happens under compulsion. … also in front of the pupils … I always told them
you have to think what you stand for, and then you stand for it, unless you are
convinced by something else. … and then I go myself and take my headscarf off?
…I am no role model then.[164]

Other women told Human Rights Watch how the ban led them to
make unwanted decisions about wearing substitutes for the headscarf, going to
another state or leaving Germany, or prolonging maternity leave and having to
investigate new careers after years of studying and working at developing their
teaching skills.

The elementary school teacher in North Rhine-Westphalia mentioned
above, described to Human Rights Watch the difficulties she experienced even
after deciding to wear a hat as a substitute:

The school administration, the director, suggested I take
parental leave [as I was entitled to] to reflect on what to do now. I liked
them and they liked me a lot… I have been wearing the headscarf since I was 16
years old, including during years as a trainee. Ok no scarf, so I'll wear a hat
and I thought that way we don't have this whole symbol anymore and everybody
profits from it, but that wasn't allowed either.… I had talked beforehand to
the school inspector about wearing the hat and he told me, "I don't care what
you wear on your head, [what is] important is that you are a good teacher. Well
then go with the hat, let's try."…It was my idea.… At the time, although there
was already the headscarf law, we did not know that the hat is also not
allowed. This came only later when the cases with hats occurred. Only then it
was said that a hat is also not allowed.… My director had to report that I am
wearing it. I don't blame her … she did not want to go against the law.[165]

To avoid being dismissed, this teacher finally took up the
suggestion of taking parental leave. At the time she met with Human Rights
Watch, she was contemplating moving to a state where she could teach without
giving up her headscarf: "I am thinking of going to Rhineland-Palatinate … but my
children's father [from whom she is divorced] is here … [I]t's difficult for
the children … but I also have to think how to provide for them, also later
when they want to study.… But if the law also comes in Rhineland-Palatine then
I am back to the start again.… My whole family is here, therefore it would be
difficult for me to leave. I need this contact with family and friends."[166]

Emilie (not her real name), an elementary school teacher in
North Rhine-Westphalia who converted to Islam explained the financial
difficulties she faced as a result of the ban, having decided to extend
maternity leave and then take extended parental leave to avoid coming into
conflict with the new law, even though her husband was unemployed and they
needed her income from teaching:

Since my husband was also looking for a job, we will go now
for some time abroad [to Morocco]. I am leaving with mixed feelings, since even
a part-time job would have enabled a frugal life here. Now I am waiting for
other Muslim women to fight for the right of free practice of religion, and
hope it will be successful."[167]

One Muslim convert trainee teacher, told by an official of
the Bavarian State Ministry of Education she would not be allowed to do her
practical years wearing a headscarf, moved to Vienna (Austria) to work as an assistant at an Islamic primary school.[168]

Those who have decided to take off their headscarf in order
to keep their jobs or to wear a wig that does not cover the ears or neck
described the upset and unease this caused them. In the words of one teacher
from southern Germany:

I started to wear the headscarf [when I was] 15. … There
are no pictures with me and the wig, I avoid that. I feel uncomfortable. I don't
like to go out in public with it on: I do excursions with my pupils because it
is important for the children, but I don't like to take the tram with it. I
also avoid further training outside the school and try to do it in our school.
No, I don't feel comfortable.… Otherwise I would have been outside [wearing
it]. It was basically the question: Do I give up on all my years of studies and
complete education or do I find a loophole to still work?… To leave my home
town would have been too much of a sacrifice.[169]

Rabia, a special education teacher in Dortmund, who
converted to Islam and has been wearing a headscarf throughout her education
and work as a teacher (since 1995 at the same school) has worn a broad hairband
since the ban was introduced in 2006 in North Rhine-Westphalia. She first tried
to wear a scarf, but would not have been allowed into class like that.

I consulted with my conscience, and conferred with my
husband how I would bear it … and decided to take the headscarf off. I am
wearing the hair band in defiance, to have something. It does not look good and
is uncomfortable. I also looked at wigs before, which are quite expensive. "Like
real" the saleswoman said at the end, and I thought, "I might just as well show
my own hair." To renounce the headscarf is very difficult. On the first day I
"disguised" myself in the school toilet. When a colleague spoke to me, I broke down
in tears."[170]

Rabia added, "My son asked me, 'What is more important-Allah
or work'? I answered him that it is complicated, when he gets older…"[171]

Although trainee teachers are supposed to be exempt from
bans, following the June 2006 ruling of the Federal Administrative Court, in
practice they have faced difficulties accessing training places or
traineeships, although they ultimately found a place.[172]
Trainee judges have told Human Rights Watch about incidents of access to some
training roles being limited, such as sitting next to the judge or representing
the prosecution.[173]
In the states with bans on the headscarf for teachers, no trainee teacher who
wears the headscarf has found employment in a public school since the bans were
introduced.

Court cases and accompanying media attention also put
considerable pressure on women affected by the headscarf ban, as well as on their
schools and families.[174]
This is why some avoid legal action. According to an elementary teacher in
North Rhine- Westphalia: "I would never go to court, I do not have the strength
and nerves to deal with that. Even if maybe it would help others if many of us
would go to court, I just can't. That is why I never considered it."[175]

Sara, who moved after her home state's ban to North
Rhine-Westphalia, only to be confronted with the same ban there, and whose
court case in North Rhine-Westphalia was put on hold after she became pregnant,
talked about the pressure she feels under:

When I come back to work, I will continue the court case to
be able to stay in my job with the headscarf, which I hope will then not be
necessary anymore … This is what I say now … I don't know how it be will be when
the time for a decision is upon me … a lot of things go through your head then …
This puts an extreme pressure on you and your family. My husband backs me
whatever my decision, but it is still difficult. I was never someone who is politically
or legally versed.[176]

The elementary teacher Emilie from North Rhine-Westphalia whose
financial problems and decision to leave temporarily for Morocco are mentioned
above, explained her decision not to go back to work rather than fight the ban:

I have four children and was on maternity leave when the
headscarf ban began on June 13, 2006 ... In that year I had thought I would go
back to work less then part-time but that [idea] moved to the back burner
because of the ban. I didn't have the strength to fight on both levels: To
manage with four children, one of whom has serious attention deficit
problems...and I thought, I cannot also get into conflict with the law. I saw
what other colleagues faced [when they challenged the law]: the press comes to the
school, [they] receive inquiries and also sometimes hostility.[177]

At a further education center developed and run by and for Muslim
women in North Rhine-Westphalia, women we met expressed their belief that their
decision to wear the headscarf means that they would have had no chance to get
work in education. They also reported problems in the state faced by women who
wear the headscarf finding training places with lawyers[178]

The headscarf ban debate appears to have had a negative
effect on the employment as lay judges of women who wear the headscarf (lay
judges being ordinary citizens without legal training who are elected to sit as
judges).[179]
Although the state ban does not apply directly to lay judges, there have been
several cases in North Rhine-Westphalia[180] in 2006 (and one
request in Berlin in 2004[181])
where lay judges who wear the headscarf have been ordered by the chairing judge
to remove their headscarves during the trial, and excluded from sitting as a
judge in the court if they refused to do so.[182]

There have been cases in Berlin,[183]
Hesse,[184]
Lower Saxony,[185]
and North Rhine- Westphalia[186]
where trainee lawyers wearing the headscarf have had their access to court for
training purposes restricted. They were released from parts of the education
and training as they were not allowed to perform as the representative of the
prosecution in session (Sitzungsvertretungen) or sit at the judge's
bench.

Academics and representatives of women's groups and Muslim
groups (including Muslim women's groups) interviewed by Human Rights Watch
suggested that state headscarf bans and debates in Germany have aggravated
discrimination against women who wear the headscarf. Research by the Berlin state equality office indicates the ban in Berlin has an effect for women who wear
the headscarf in other employment sectors not covered by the law and on the
headscarf debate more broadly. [187]
The spokesperson for legal affairs of the SPD-faction in the Berlin House of
Representatives acknowledged the danger of discrimination is real, but noted
that restrictions in the private sector based on the headscarf would be
unlawful.[188]

Some of the women affected and organizations interviewed
argued that the law has a negative impact on social cohesion and that, instead
of prohibiting religious symbols, the school system should teach the peaceful
cohabitation of communities and universal values.[189]

Muslim groups, women's groups and some of the women
interviewed argue that a headscarf ban hinders the integration of Muslims in Germany because it dictates to them in a discriminatory paternalistic way how to behave and
dress.[190]
As one interviewee put in, "I was well on my way to reducing prejudices, but
they did not let me."[191]
They argue that the measures foster alienation and dependency by hindering
independent means of income, and contribute to a deterioration in the social
positions of the women affected instead of empowering them.[192]
In the words of one woman (echoed by another): "as long as we were cleaning in
schools, nobody had a problem with the headscarf."[193]

VI. Human Rights
Violations

The restrictions not only have a significant practical
effect on the lives of the women affected by them: they also constitute
violations of their human rights and of Germany's obligations under human
rights law.

Gender Discrimination
and Other Violations of Women's Rights

Policies of forced veiling and other obligations on women's
attire violate international human rights standards, and have repeatedly been
criticized by Human Rights Watch.[194]
But policies of excluding women who wear the headscarf from employment also run
foul of these international norms, such as article 11 of the Convention for the
Elimination of Discrimination against Women and the International Covenant on Civil
and Political Rights. A ban on the headscarf in employment undercuts individual
autonomy and choice, a fundamental aspect of women's rights that is also
violated in countries where women are forced to wear the headscarf. Muslim
women concerned risk not being employed in the first place, and when they do
have jobs, risk reprimands, suspension, and dismissal directly connected to the
wearing of the headscarf. In fact, a blanket exclusion of women with
headscarves from public schools amounts to a life-time employment ban in this
specific career.

Government restrictions on women's attire of any kind
interfere with their right to privacy and self-expression. In the case of the
headscarf, which is part of the identity of those who choose to wear it and
also reflects their religious beliefs, the restrictions violate those rights. Restrictions
prevent Muslim women from identifying themselves through the display of a
religious symbol, the headscarf, which is unjust, illegitimate, and
unacceptable in a democratic society.

It further denies women equal protection, by declaring a
select group of females the basis of "(fundamentalist) indoctrination" without
assessment of their actual behavior. This amounts to a reversal of the burden
of proof used in discrimination cases in German and EU law, where, once a difference
in treatment is shown, it is for the authorities to justify why this has taken
place.

The laws in all eight of the states discriminate on the
grounds of gender and on the grounds of religion. Women's religious freedom is
being violated, as these restrictions have been applied in practice exclusively
against women wearing the headscarf. By such a clear negative distinction
between men and women, they violate anti-discrimination provisions of
international human rights law outlined above.[195] For
Muslim women who consider the wearing of the headscarf to be an obligation of
their beliefs, the laws require them to choose between their deeply held
beliefs and their employment as teachers in public schools or other civil
servants.

It has been argued by state officials and politicians that
men could fall under the restrictions if they were to wear typical Muslim
clothing[196]
or if there were to be cases of teachers wearing traditional clothing of the
Indian Bhagwan movement[197]
(there had indeed been a few such cases involving teachers in the 1980s).[198]
But there have in fact been no such cases since the laws have been enacted, and
in practice it has affected only women who wear the headscarf, leading to
double discrimination on the grounds of gender and religion.[199]

As noted above, proponents of the restrictions argue that
they can be justified by the need to protect gender equality and women's human
rights: The wearing of the headscarf may be the reflection of coercion
emanating from family or the individual's social context. However it is also
clear that some sincerely desire to wear the headscarf as a part of their
religious identity. All the cases documented by Human Rights Watch including the
best known court cases have all involved adult women insisting that their
decisions were personal, not imposed.

Some feminists, among them many scholars
from universities, argue that wearing the headscarf represents individual
expression covered by the right to religious freedom. They advocate in favour of integration and the right of Muslim women to reach
higher qualifications and jobs. They are, just as the majority of the judges of
the Federal Constitutional Court,[200]
of the opinion that the headscarf is interpreted rather differently by each of
the women who wear it.

In this regard it should be noted, that the Federal
Constitutional Court had concluded in its 2003 judgment that there was no
evidence that Ludin, "merely because she wears a headscarf, might for example
make it more difficult for Muslim girls who are her pupils to develop an image
of woman that corresponds to the values of the Basic Law or to put it into
effect in their own lives." Furthermore, Germany's Muslim population is diverse
and therefore one-sided oversimplified perceptions and public
discourses on the Muslim communities should be avoided. Often, it is overlooked
that Muslims in Germany are not a homogenous group.

Instead, the dominant image of a Muslim
woman in Germany can lead to questionable misperceptions.[201]
As the director of the German Institute for Human Rights, Heiner Bielefeldt,
points out, there is a danger that policies that should be aimed at improving
the opportunities for women and girls from migrant families, will instead turn
into a "clash of cultures" with Islam. This tendency can already be identified
in the alternatives confronting Muslim women with or without the headscarf. "Either
they have to constantly distance themselves from or explain their religion, or
they have to put up with being globally viewed as either victims or even accomplices
of authoritarian family structures."[202]

In the light of the state's paramount obligations to protect
human rights, coercion by the state in banning headscarves is arguably even
more serious than coercion by private parties in requiring the headscarf.
Legitimate efforts to eliminate coercion of those who do not wish to wear the
headscarf do not justify the state in coercing others not to do so.

Banning adult women from wearing headscarves in state
employment will not necessarily prevent familial or social pressure. In
formulating these restrictions, the states do not appear to have assessed
whether a blanket ban will have an impact on possible sources of compulsion.

In any event, these issues should be tackled on their own
terms, rather than by restricting the rights of women who chose to wear the
headscarf.[203]
It would be far better to look for legislative or regulatory safeguards for the
rights of women who choose not to wear the headscarf, as well as strong public
endorsements of women's freedom to dress according to their own free choice.
Above all, state governments could actively and broadly seek out civil society
groups representing women (including Muslim women wearing the headscarf) to
cooperate on these concerns.

All women who spoke to Human Rights Watch emphasized that
the decision to cover their head was a private choice that they would not seek
to impose upon other Muslim women.[204]
They argue that the headscarf does not oppress women, and emphasize that nobody
should force a women to wear a headscarf or to take off her headscarf.

Discrimination on the
Grounds of Religion

Most of the state restrictions on religious symbols in Germany discriminate on their face on the grounds of religion. As such they violate
provisions of the ICCPR and the European Convention on Human Rights, as well as
EU law.[205]
Such direct discrimination cannot be justified.

As noted in Chapter IV, the laws in Baden-Württemberg,
Saarland, Hesse, Bavaria, and North Rhine-Westphalia contain explicit
exceptions for Christian and Western values and traditions, and in Bremen and
Lower Saxony the explanatory documents and parliamentary debates for the
legislation stated that Christian traditions do not breach the neutrality
requirement relied on to justify the restrictions. Consequently, the laws allow
states to treat members of certain (popular) religious groups differently from
otherwise similarly situated members of other (less popular) religious groups.
In practice, this means that school authorities in those states can legally ban
headscarf-wearing Muslim public school teachers while continuing to allow
Christian nuns who are teachers to wear religious clothing and symbols.[206]

The restrictions in these seven states target Muslims or
otherwise have a disproportionate effect on them. This is evidenced by the
fact that all of the court cases in relation to the constitutionality of the
restrictions on religious symbols and their application in practice have
concerned women who wear the headscarf for reasons of Muslim religious
expression. Moreover, as noted above, when the measures were introduced, state
government representatives made clear in several cases that the aim was to
restrict the wearing of the headscarf and not other religious symbols.

This focus was acknowledged by the Federal Administrative
Court when it heard Fereshta Ludin's case. The court recognized the effect of
the Baden-Württemberg law on "the Islamic religious community" even though it
concluded that the effect was not "excessive" because of the possibility of
Muslim teachers who wear the headscarf finding employment in private schools.

The only other cases in Germany involving restrictions on
dress were of a secular nature. As mentioned above, there were cases in which
trainee judges agreed to alter a "punk hair style" and remove piercings deemed
to breach the neutrality of the state. In addition, a "left-wing" trainee
teacher in Baden-Württemberg was refused a teaching post because he was engaged
with the organization Antifa. The teacher went to court, losing at first
instance in 2006, but won his appeal at the state administrative court in 2007
and is now teaching.[207]
In other words, when a person's fundamental beliefs were at stake, the case was
resolved in his favor notwithstanding the risk to the neutrality of the school.

The discriminatory nature of the restrictions was further
underscored by efforts by Baden-Württemberg, Bavaria, and North
Rhine-Westphalia to exempt Christian nuns who wore habits from the
restrictions, even after the ruling of the Federal Administrative Court that
all religions must be treated equally under the law. Baden-Württemberg
continued to permit nuns to wear their habits while teaching in public schools,
and therefore failed to implement the judgment.

As former Federal Constitutional Court judge Ernst-Wolfgang
Böckenförde has pointed out, the efforts of states to maintain exceptions for
nun's habits even while they ban the headscarf constitute discrimination and
violate the right to equality.[208]
In the long run, he points out, Germany, and especially states
with close ties to the Catholic faith, risk losing the opportunity to express
Christian values and traditions if they prohibit Muslim symbols in schools and
public spaces, as the need to be non-discriminatory when adopting such an approach
to "neutrality" is likely to result in secularism.[209]

It should be noted that some church representatives have
also spoken against a headscarf ban, motivated by a concern that the obligation
enumerated by the Constitutional Court to treat all religions equally would
ultimately lead to secularism, and the exclusion of Christian symbols and
dress.[210]

In understanding the context of the restrictions on the
headscarf it is also important to note that Islam is not a
formally recognized religion in Germany and therefore Islam has not been
granted equal status and rights in the same way as the Christian and Jewish
religions.[211]

Berlin

Berlin takes a
different approach, in that it bans all expression of visible religious
commitment in the appearance of teachers. This raises a
question about whether the "visibility" of religious symbols should be a
criterion for the exercise of religious freedom. Obviously a headscarf is "more
visible than a small golden cross fixed to a necklace". One can argue that Berlin's law has a disproportionate impact on Muslims.[212]

Leaving aside that issue, it is clear that Berlin's law disproportionately impacts teachers who have religious faith they wish to
manifest. It is not neutral between teachers with religious faith and those without
it.

While ostensibly fairer than the other
restrictions as it formally treats all religions equally, the law in Berlin
nevertheless discriminates against those of faith who wish to enter state
public service and to manifest their beliefs, by forcing them to choose between
their job and their religion.

Furthermore, Berlin's the ban on religious
clothing also affects in practice at present only women wearing the headscarf,
amounting to indirect discrimination.

Denial of the Right to
Religious Freedom

A blanket prohibition on teachers and civil servants wearing
visible religious symbols in schools violates freedom of religion. The ICCPR,
among other sources of international human rights law, obliges state
authorities to avoid coercion in matters of conscience, and states must take
this obligation into account when devising school dress codes. Countries such
as Iran or Saudi Arabia that force women to wear headscarves violate this
principle. So too do countries that adopt blanket prohibitions on visible
religious symbols.[213]

As noted above, religious freedom, including the freedom to
manifest one's religious beliefs through clothing and symbols, is not an
absolute right. The state may impose reasonable restrictions on rights for the
purpose of regulating a legitimate state interest.

The current bans in eight German states on religious symbols
for teachers and other civil servants, however, do not constitute reasonable
restrictions. Headscarves do not pose a threat to public safety, health, order,
or morals, and they do not impinge on the rights of others. They are not
inherently dangerous or disruptive of order, and do not undermine the
educational function. There may be specific circumstances in which state
interests justify regulation of religious dress, as when such dress would
directly jeopardize individual or public health or safety. Such concerns,
however, cannot justify a blanket prohibition.[214]

The German state laws, particularly those that include
exceptions for Christianity, include many of the "aggravating factors"
identified by the UN special rapporteur on freedom of religion or belief,"
providing further evidence that the measures are incompatible with
international human rights law: (1) The restrictions lead to
discrimination or camouflageddifferentiation
depending on the religion involved; (2) The limitations
are based on principles deriving exclusively from a singletradition and exceptions are tailored to
the predominant or incumbent religion or belief; (3) In practice, state
authorities apply the imposed restriction in a discriminatory manner, for
example by arbitrarily targeting certain communities orgroups, in particular Muslim women. (4) Finally,
no due account is taken of specific features of religions or
beliefs.

Restrictions on the wearing of the headscarf by teachers in
public school engage two conflicting aspects of religious freedom: the
teacher's positive freedom to manifest her religion, and possibly the negative
freedom of religion of the pupils in her class from "indoctrination." Parents
or legal guardians have the right to ensure the religious and moral education
of their children in general conformity with their own convictions about a
child's upbringing.[215]

In Human Rights Watch's assessment, however, restrictions
can be imposed on a teacher only when an assessment of that teacher's entire
behavior has shown that the teacher has taken action what would interfere with
the freedom of religion of the children, for example through coercion. A
general ban on headscarves is not a proportionate measure: It is based on a
possible abstract danger of a negative effect, without any concrete evidence
that teacher's wearing a headscarf, in and of itself, leads to a coercive
influence on children to adopt Islam or would lead Muslim girls to feel compelled
to wear the headscarf.

None of the grounds under human rights law for limiting
religious freedom is satisfied in the case of Germany's headscarf ban. The
protection of health and morals is hardly an issue in connection with the
headscarf ban. Neither is prevention of disorder or crime. It is not the
responsibility of teachers who feel religiously obliged to wear the headscarf
to maintain harmony by removing themselves altogether.

The appeal to the principle of secularism or neutrality in Germany in justifying this ban is unconvincing for several reasons. Firstly, one has to
question whether the arrangements in Germany (with the exception of Berlin) can
be described as secular at all, given the explicit exceptions granted for
Christian values and symbols. Secondly, besides referring to the abstract
principle, state governments in Germany have not shown how permitting a teacher
to wear a headscarf in a state school could in practice compromise state
neutrality. It would not constitute endorsement of those views
by the state.

The interests of public order are not overriding, and the
benefit of limiting a right has to be balanced against the interests of those
who wish to exercise their right. In this case, the costs for the women denied
state employment are heavy, whereas the benefit for other citizens is far from
clear, since to the best of Human Rights Watch's knowledge, headscarves were
worn by school teachers and other civil servants without incident before the
laws were enacted.

In the same vein, Germany's headscarf ban cannot be
justified as necessary for public safety. Again, the experience before the enactment
of the laws puts the accuracy of this in question. It is difficult to see how
teachers and civil servants wearing a headscarf, accompanied by credible
safeguards for women who choose not to wear the headscarf, could present a
threat to public safety convincing enough to justify such a drastic limitation of
an individual's right to freedom of religion and expression.

The final justification commonly advanced for the headscarf
ban is that it protects the rights and freedoms of others who choose not to
cover their heads. Human Rights Watch is not aware of any evidence from before
the laws were introduced to suggest that this is a genuine problem. Excluding
women with headscarves from teaching or even entirely from state employment
cannot be a reasonable and proportionate response to a future, hypothetical, threat
of exclusion posed to women who leave their heads uncovered. The governments
cannot reasonably claim that a restriction on head-covering answers a "pressing
social need" and advances democracy and rule of law, especially in a country in
which Muslims constitute a minority.

Minority Rights

In fact in none of the states concerned is there any
evidence that the authorities considered their duties to take particularly
steps to ensure the protection of religious minorities and that they can
practice their faith. On the contrary, there is explicit or implicit attempt to
privilege the majority religion. Therefore Germany, by virtue of being
responsible for its Länder, is in clear violation of its duties to
protect the rights of minorities.

VII. The Way Forward

As the European Court of Human Rights has repeatedly
stressed, the State has a duty to remain neutral and impartial to ensure the
preservation of pluralism and the proper functioning of democracy. When an
issue such as the headscarf becomes a source of tension, the role of the
authorities in such circumstances is not to remove the cause of tension by
eliminating pluralism, but to ensure that the competing groups at least
tolerate each other and respect each others' rights.[216]

Accommodation based on mutual respect is possible. Many of
the women interviewed by Human Rights Watch sought compromise by wearing hats
and were willing to consider other alternatives that comported with their
religious obligations. The majority of the Muslim women wearing the headscarf
whom we interviewed accepted that it could be appropriate for states to impose
restrictions on teachers wearing forms of Muslim dress that cover the face if
it was shown to interfere with occupational requirements, such as children
learning language and other skills through imitating their teacher's facial
expressions.

Accommodation will require the states to genuinely consult
across society. Doing so would give proponents of restrictions an opportunity
to express their reservations and to suggest safeguards or undertakings that
the government could make to protect society against the erosion of rights-and
in particular, the rights of women-they fear would result from a lifting of the
headscarf ban.

By listening to the concerns of women from all sides of the
argument, the governments may be able to break away from the ban and move
toward a genuine pluralism that allows women to make their own free choice
whether to wear the headscarf. If those concerns are reflected not only in the
final form of a law, but also in a broader government program to protect
women's rights, legislation consistent with international human rights
standards will also address concerns expressed.

The anti-racist organization Intercultural Council Germany
is opposed to blanket bans on the wearing of the headscarf. The Council is an
umbrella group that includes civil society organizations, unions, employers'
organizations, municipalities, state institutions, and media. It advocates
intercultural and interreligious dialogue in order to prevent the ethnic
segregation of minorities. The Council published in January 2004 a collection
of "theses on the headscarf" listing arguments for and against the headscarf,
addressed at the majority society as well as Muslim organizations.[217]
It argues for a case-by-case approach with state action in headscarf cases only
where the constitutional loyalty of the teacher is in doubt.

This suggests the way forward. There is undoubtedly a
potential for actual concerns on the part of parents arising in particular from
teachers wearing the headscarf. And schools have a duty to ensure that teachers
exercise their function in accordance with the constitution. But the way to
deal with those concerns while respecting the rights of those teachers who wish
to wear the headscarf is to approach each case on its own merits. Teachers
should be assessed on the basis of their actions, not on what they choose to
wear.

Where there exist concrete concerns that a teacher's conduct
infringes neutrality, those concerns should be dealt with through ordinary
disciplinary procedures on a case-by-case basis. Schools and educational
authorities should also look favorably on offers by teachers to wear
alternative head coverings that do not resemble the headscarf but are nonetheless
consistent with their faith.

Expanded
Recommendations

To the State (Land)
governments in Germany

State governments should revise and repeal existing
legislation on prohibition of religious dress and symbols to ensure that
freedom of religion and expression are protected and that the principle of
nondiscrimination is guaranteed, and with the objective of ending
discrimination on both religious and gender grounds in these sectors of
employment.

oIn the interim, schools and
educational authorities should look favorably on offers by teachers to wear
alternative head coverings that do not resemble the headscarf but are
nonetheless consistent with their faith.

oIn the interim, the state governments
should take appropriate measures to better inform authorities, and more
generally the German population, about the exact scope and limits of the law.
It should be made clear that the wearing or display of religious symbols is an
essential part of the right to manifest one's religion or belief that can only
be limited under specific and restricted conditions. The governments should
also promptly provide redress in any situation where a person has been the
victim of discrimination or other act of religious intolerance because of their
religious symbols.

Concrete concerns that a teacher's conduct infringes
neutrality should be dealt with through ordinary disciplinary procedures
on a case-by-case basis.

Conduct a thorough review, in consultation with all
relevant groups, to ensure that legislation and regulations concerning dress
in higher education are fully consonant with international law and
standards concerning freedom of religion and freedom of expression.

State governments that intend to regulate the wearing of
religious symbols should consider seeking advisory services from the UN
Office of the High Commissioner for Human Rights and the special rapporteur
on freedom of religion and belief.

Ensure that state practice is consistent with the United
Nations Convention on the Elimination of All Form of Discrimination Against
Women (CEDAW), the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD), and other relevant UN treaties.

To the Federal
Government of Germany

Minister of State in the Federal Chancellery and
Federal Government Commissioner for Migration, Refugees, and Integration

Review the effects of the state-level restrictions on
religious dress and symbols and their compatibility with Germany's international human rights obligations, including the United Nations Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW), the International
Convention on the Elimination of All Forms of Racial Discrimination
(ICERD), and with EU anti-discrimination law.

Remove the restrictions on the application of the Framework
Convention on National Minorities in Germany, so that it applies to all
minorities.

Federal Anti-discrimination Office

In cooperation with local nongovernmental bodies and
anti-discrimination organizations, take the lead in raising awareness and
shaping the debates on the issue amongst policy makers, the general
public, and victims of such regulations. Specifically:

oIssue public opinions on
relevant state legislation, analyzing discriminatory impact and overall
compatibility with the Equal Treatment Act (AGG) and the EU Directives on equal
treatment.

oInclude relevant
statistics, concerns, and recommendations on this issue in its first regular
report to the Bundestag.

To the European Union

EU member states should review their legislation and
policies in light of the concerns raised in this report to ensure that any
restrictions on religious dress-in state employment or otherwise-comply
with international human rights standards and the EU Charter of
Fundamental Rights.

The European Parliament Committee on Civil Liberties,
Justice and Home Affairs (LIBE) as well as the Committee on Women's Rights
and Gender Equality should undertake a (possibly joint) report analyzing
member states' legislation and practices in light of the concerns raised
in this report, in particular with respect to freedom of religion and
discriminatory impact.

The Fundamental Rights Agency should include the issue as
a thematic priority in its work program for 2010, or design a thematic
research project, continuing to monitor measures restricting religious
symbols and clothing in EU member states and assessing their compliance
with the fundamental human rights norms underpinning the Union, in
particular the Equal Treatment Directives.

To the Council of Europe

The commissioner for human rights should make an
assessment (in the form of a "viewpoint" or otherwise) on the impact of
existing bans on religious symbols in the Council of Europe region.

The commissioner should raise with the German government
the concerns detailed in this report, including the discriminatory impact
of restrictions incompatible with Germany's human rights obligations, and steps
needed to ensure religious freedom.

The Parliamentary Assembly's Legal Affairs and Human
Rights Committee and its sub-committee on rights of minorities should
undertake an analysis of legislation and practices throughout the Council
of Europe region in light of the concerns raised in this report, in
particular with respect to discrimination and religious freedom

The Parliamentary Assembly's Committee on Equal
Opportunities of Women and Men should consider the impact of restrictions
outlined in this report in light of its 2005 report on women and religion.

The European Commission against Racism and Intolerance
(ECRI) should in its next report on Germany follow up on the concerns
raised in this report and should question the government on the
discriminatory impact of bans in place.

The Advisory Committee on the Framework Convention for the
Protection of National Minorities (FCNM) should address this issue in its
next review of Germany.

To the United Nations

The United Nations special rapporteur on freedom of
religion or belief should conduct a country visit to Germany to
investigate the compatibility of Germany's measures with international
human rights law, and issue relevant recommendations drawing on the set of
general criteria concerning religious symbols as outlined in her report to
the Commission on Human Rights (E/CN.4/2006/5).

The Human Rights Committee should use the opportunity of
its next review of Germany to raise concerns about the policies and
practices documented in this report, and formulate specific
recommendations to German authorities.

Acknowledgments

The report was researched and written by Haleh Chahrokh,
researcher in the Europe and Central Asia Division of Human Rights Watch. It
was edited by Benjamin Ward, associate director in the Europe and Central Asia
Division, Clive Baldwin, Senior Legal Advisor, and Ian Gorvin, Senior Program Officer.
Liesl Gerntholtz, Director of the Women's Rights Division, Veronika Szente
Goldston, advocacy director in the Europe and Central Asia Division also
provided input. The report was also reviewed by Judith Sunderland, researcher
in the Europe and Central Asia Division, who also co-conducted some of the
victim interviews in Germany. Production coordination was provided by Iwona
Zielinska, associate in the Europe and Central Asia Division. Anna Lopriore coordinated photo preparation, Grace Choi, Meg Reber and Fitzroy Hepkins prepared
the report for production.

We thank all of the individuals and organizations who helped
to make this research possible. Some defense lawyers gave generously of their
limited time to discuss their clients' cases and provide insight on questions
of law. We appreciate the willingness of lawyers and officials to speak with us
in the course of this research. Finally, we acknowledge the women concerned by
the regulations who agreed to speak with us and share their experiences.

[4] German federal government responding to a major
interpellation by the Green party on the status of legal equality of Islam in
Germany, BT-Drucksache 16/5033, 2007, April 18, http://dip21.bundestag.de/dip21/btd/16/050/1605033.pdf
(accessed January 10, 2009), p. 6.

[7] Muslim religious dress consisting of a kerchief worn
over or around the head, often folded and tied, usually concealing the hair and
neck. In Germany, Muslim women wear it in diverse forms, shapes, types and
styles.

[11] Many prominent women in Germany from the political
and artistic world signed in December 2003 the call "Religious diversity
instead of forced emancipation. Call against a headscarf law," initiated by
Marieluise Beck, then-commissioner for migration, refugees and integration
(Green Party) and member of the Bundestag; Barbara John, former Berlin
commissioner for foreigners, migration and integration (Christian Democratic
Union) and coordinator for language training for migrants at the Ministry for
Education Berlin; and Rita Süssmuth, former president of the German parliament
and chairwomen of the Commission on Immigration (Christian Democratic Union),
http://www.bpb.de/themen/XUDYWD,0,0,Religi%F6se_Vielfalt_statt_Zwangsemanzipation!.html
(accessed December 12, 2008).

[12] Germany's most famous feminist Alice Schwarzer has voiced
her opinion on the headscarf frequently. She cites the order to veil the female
body or hair as evidence of the incompatibility of Islam with German values of
democracy and freedom.

[13] The social scientist and writer is very outspoken
against the headscarf as an Islamist flag.

[14]Seyran Ates has faced death threats while representing victims of
domestic violence. She argues that an end to the ban would pose a serious
threat to women's freedoms hard-won since the 1960s.

[15]The "call against a headscarf law" initiated by Marieluise Beck was
criticized by feminists and in particular by a group of migrant women from
Muslim countries. In 2004 this group opposed to the headscarf wrote an open
letter to Beck, which stressed that religion should be a private affair and
that those who "under the influence of the Islamists" choose to wear the
headscarf in public life should not be eligible for the civil service. The
letter is reproduced at
http://www.bpb.de/themen/VKZXQL,0,0,F%FCr_Neutralit%E4t_in_der_Schule.html (accessed
December 29, 2008).

[16]These proponents include church
representatives, women's groups, politicians (mainly the Christian Democrats,
but also other political parties, with some variation by state), and public
intellectuals. See also Berghahn and Rostock, "Cross national comparison Germany."

[19] Human Rights Watch interviews with officials at the
Ministry for School and Further Education of North Rhine-Westphalia,
Düsseldorf, September 29; and the Ministry of Education of Hesse, Wiesbaden, October 9, 2008.

[20] See, for instance, Berghahn and Rostock, "Cross
national comparison Germany"; and Turkish Community in Germany (TGD), "No compromises in
the headscarf discussion" ("Keine Kompromisse in der Kopftuchdiskussion"),
January 7, 2004, http://www.tgd.de/index.php?name=News&file=article&sid=279 (accessed December 12,
2008).

[21] Founded in 1995, the TGD is a nationwide umbrella organization for a
number of regional Turkish communities in Germany and for associations such as
the Turkish Academic Association, the Turkish Teachers' Association, and the
Union of Turkish-European entrepreneurs. It advocates the judicial, social, and
political equality of Turkish and other migrants in Germany, and counters
xenophobia as well as any form of discrimination.

[23] See, for instance, Franz Josef Jung, political
faction chairman of the CDU in the State Parliament of Hesse, Address Before
the Hesse Parliament Regarding the Law for the Protection of the Neutrality of
the State, 1, minutes of plenary proceedings 16/30, 16th election
period, 30th session, February 18, 2004, Wiesbaden,
http://starweb.hessen.de/cache/PLPR//16/0/00030.pdf (accessed December 19,
2008); and Second reading of the draft law amending the school act in the state
of North Rhine-Westphalia, Drucksache 14/569, and recommendation for a decision
and report of the main committee, Drucksache 14/1927, p. 3344.

[28]European Convention for the Protection of Human Rights
and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3,
1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on
September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998,
respectively.

[38] In addition to CEDAW, see ICCPR, ICESCR, and their
respective committees; the International Labour Organization (ILO), its
Committee of Experts, and Convention No. 111 dealing with discrimination in
employment; the Beijing Declaration And Platform For Action (BDPFA) and the
Follow-up to the 4th World Conference on Women and Full Implementation of the
Beijing Declaration and Platform for Action; and the Outcome of the 23rd
special session of the General Assembly.

[43] Ibid. The Directive defines direct discrimination and
indirect discrimination in its article 2. Direct discrimination is "where one
person is treated less favorably on grounds of sex than another is, has been or
would be treated in a comparable situation," and cannot be justified. Indirect
discrimination is where an apparently neutral provision, criterion or practice
would put persons of one sex at a particular disadvantage compared with persons
of the other sex, unless that provision, criterion or practice is objectively
justified by a legitimate aim, and the means of achieving that aim are
appropriate and necessary.

[45]See the wording-with a slightly differing order
of the list of possible manifestations of religion or belief-in article 18 of
the Universal Declaration of Human Rights (UDHR), ICCPR article 18 (1), ECHR
article 9(1), and the 1981 Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief (1981 Declaration
of the General Assembly), article 1(1).

[49] Moreover, the Basic Law expressly prohibits, in
article 33, discrimination in the public service on the basis of religion or
world views: Clause (2) says, "Every German is equally eligible for any public
office according to his aptitude, qualifications, and professional
achievements," and clause (3) affirms, "Enjoyment of civil and political
rights, eligibility for public office, and rights acquired in the public
service are independent of religious denomination. No one may suffer any
disadvantage by reason of his adherence or non-adherence to denomination or to
a conviction." Basic Law art. 33(2)–(3).

[73] Niraj Nathwani, "Islamic Headscarves and human
rights: a critical analysis of the relevant case law of the European Court of
Human Rights," Netherlands Quarterly of Human Rights, vol. 25 no. 2,
June 2007.

[81] See, for instance, "Not without my habit" ("Nicht
ohne meine Kutte"), DerSpiegel (Hamburg), October 12,
2004, http://www.spiegel.de/schulspiegel/0,1518,322789,00.html
(accessed November 25, 2008), referring to statements made by Annette Schavan,
Baden-Württemberg's minister of culture at the time, demonstrating just that
intent. She had also argued that the nun's habit would be work attire, see
"Class without coif" ("Unterricht ohne Haube"), Der Spiegel, October 18,
2004,
http://wissen.spiegel.de/wissen/dokument/dokument.html?id=32499129&top=SPIEGEL
(accessed January 28, 2009).

[82] Human Rights Watch interview with officials from the Baden-Württemberg
Ministry of Education, Youth and Sport, Stuttgart, September 24, 2008. The
officials confirmed that Christian clothing and display have been deliberately
exempted by the legislature and that nun's habits, the cross, and the kippa are
permitted.

[88] Gesetz Nr. 1555 zur Änderung des Gesetzes zur
Ordnung des Schulwesens im Saarland (Schulordnungsgesetz), June 23, 2004 (Amtsbl. S.1510). It should be noted that in the explanation to the
draft law, the legislator explicitly points out that the regulation is not
limited to headscarves. Nevertheless the wearing of Christian and Jewish
symbols remains possible.

[90] See explanatory comments in the Bavarian government
draft law, Gesetzesentwurf der Staatsregierung zur Änderung des Bayerischen
Gesetzes über das Erziehungs- und Unterrichtswesen; First reading of draft law
in state parliament of North Rhine-Westphalia, minutes of plenary proceedings
14/12, p. 1018, November 9, 2005; Second reading of the draft law amending the
school law in the state parliament of Saarland, minutes of plenary proceedings
12/69, 12th election period, 69th session, June 23, 2004, p. 3684,http://www.landtag-saar.de/dms/Land069.pdf
(accessed December 20, 2008); and debates in the state parliament in
Baden-Württemberg at the first reading of the draft law amending the school act
on February 4, 2004, plenary proceedings, 13/62, 13th election period, 62nd
session, http://www.landtag-bw.de/Wp13/Plp/13_0062_04022004.pdf
(accessed January 5, 2009).

[91] Human Rights Watch interview with official in
Bavarian State Ministry of Education, Munich, October 17, 2008.

[95] Similarly a Bavarian ministry official to whom Human
Rights Watch spoke stated that a nun's habit is not a political symbol, while a
headscarf can be also a political symbol conflicting with the equality of
women. Human Rights Watch interview with official from Bavarian State Ministry
of Education, Munich, October 17, 2008.

[96] See the then-minister for education, cultural
affairs, youth and sport and other parliamentarians at plenary debate in the
state parliament of Baden-Württemberg on February 4, 2004, minutes of plenary
proceedings 13/62, 13th election period, 62nd session, http://www.landtag-bw.de/WP13/Plp/13_0062_04022004.pdf
(accessed December 19, 2008).

[97] See for all arguments, Franz Josef Jung, Address
Before the Hesse Parliament Regarding the Law for the Protection of the
Neutrality of the State, minutes of plenary proceedings 16/30, 16th
election period, 30th session, February 18, 2004, Wiesbaden, pp. 1897-1898,
http://starweb.hessen.de/cache/PLPR//16/0/00030.pdf (accessed December 19,
2008).

[99]Franz Josef Jung, Address Before the Hesse Parliament
Regarding the Law for the Protection of the Neutrality of the State minutes of
plenary proceedings 16/30, 16th election period, 30th session,
February 18, 2004, Wiesbaden,
http://starweb.hessen.de/cache/PLPR//16/0/00030.pdf (accessed December 19,
2008). See also an approving interjection by another CDU parliamentarian during
the same first reading of the Law in the Hesse parliament, minutes of plenary
proceedings 16/30, 16th election period, 30th session, February 18,
2004, Wiesbaden, p. 1902, http://starweb.hessen.de/cache/PLPR//16/0/00030.pdf
(accessed December 19, 2008) responding to a Green parliamentarian's summing up
of the law's objective as "headscarf no, cross yes."

[100] Second reading of the draft law amending the school
act in the state of Nord Rhine-Westphalia, Drucksache 14/569, page 3344;
recommendation for a decision and report of the main committee, Drucksache
14/1927.

[101] Franz Josef Jung, Address Before the Hessen
Parliament Regarding the Law for the Protection of the Neutrality of the State.

[102] Explanation in the Bavarian government draft
law,Gesetzesentwurf der Staatsregierung zur Änderung des Bayerischen Gesetzes
über das Erziehungs- und Unterrichtswesen,Bavarian parliament, 15th
election period, Drucksache 15/368, February 18, 2004. See also speech of Franz Josef Jung, Address before
the Hessen Parliament Regarding the Law for the Protection of the Neutrality of
the State.

[103] According to information provided by the Hesse
Ministry of Interior and Sport, these other cases concerned political
expressions of opinion on stickers and t-shirts. All cases were resolved in
conversations by the responsible training supervisor autonomously, partly after
consulting the management of the department or authority.

[104] This argument was also put forward by the state
government of Hesse in the legal proceedings brought to ask for direct judicial
review of the school and civil servant law in Hesse. Judgment of Constitutional
Court of Hesse on December 10, 2007, AZ.: P.St. 2016. Officials from the Ministry
of Education, Youth and Sport of Baden-Württemberg made a similar argument to
Human Rights Watch in an interview in Stuttgart on September 24, 2008.

[115] See also Ruben Seth Fogel, "Headscarves in German
Public Schools: Religious Minorities are Welcome in Germany, Unless - God
Forbid-they are Religious," New York Law School Law Review, vol. 51,
issue 3, 2006-2007, pp. 618-653.

[129] See the debate during question time in the state
parliament of Lower Saxony on the occasion of the first deliberation on a
relevant draft law amending the school law, minutes of 23rd session, January
21, 2004, Hannover, pp. 2424-2426, http://www.landtag-niedersachsen.de/infothek/dokumente/dokumente_index.htm
(accessed December 20, 2008). See also minutes of plenary proceedings, state
parliament Bremen, 16th election period, 43th session, June 23,
2005,
http://www.bremische-buergerschaft.de/volltext.php?look_for=1&buergerschaftart=1&dn=P16L0043.DAT&lp=16&format=pdf&ppnr=16/43
(accessed February 3, 2009).

[132] In the area of justice administration this only
applies for public servants who exercise governmental functions.

[133] There was a case in Lower Saxony before the new law
came into force. The claimant, a teacher who had converted to Islam, won at
first instance in 2001 but the decision was reversed by the High Administrative
Court in 2002. The teacher withdrew her appeal before the Federal
Administrative Court ruled on the case.

[134] Complaints by two lawyers about a recording court
clerk wearing a headscarf in Charlottenburg were deemed to fall outside the
scope of the law by the justice senator in January 2008, on the grounds that
the clerk did not perform "sovereign" functions. See
http://www.berlinonline.de/berliner-zeitung/archiv/.bin/dump.fcgi/2008/0116/berlin/0086/index.html
(accessed January 5, 2009).

[135] Decision of the Administrative Court Bremen on May
19, 2005, 6 V 760705 (first instance); decision of the High Administrative
Court Bremen on August 26, 2005; as well as judgments of the Administrative
Court Bremen on June 20, 2006, 6 K 2036/05 and of the High Administrative Court
Bremen on February 21, 2007.

[136] In
Baden-Württemberg, North Rhine-Westphalia and Hesse these exceptions for the
persons within preparatory service may not be granted "if compelling
reasons/legal provisions stand against it."

[140] On March 2, 2005, all political parties (CDU, SPD,
PDS) in Brandenburg rejected a corresponding bill by the DVU faction in the
first reading. All parties saw no need for regulations. A bill proposed in
Rhineland-Palatinate by the Christian Democratic faction was rejected by the
governing SPD and FDP in November 2005 as not necessary.

[141] Human Rights Watch interview with Özlem Nas, spokeswoman
from the Muslim women organization in North Germany, Hamburg, September 16,
2008. Human Rights Watch phone interview with Aida (not her real name) trainee
teacher, Hamburg, October 27, 2008. Human Rights Watch interview with Enif
Medeni, a teacher who trained in Hamburg and now teaches at a Berlin private
Muslim elementary school, Berlin, September 22, 2008. Human Rights Watch
interview with Farida (not her real name), a teacher in Rhineland-Palatinate
who was born and raised in Germany and moved from Baden-Württemberg because the
ban came into force after she finished her studies, Karlsruhe, September 14,
2008.

[148] Human Rights Watch telephone interview with
Amtsleiter Norbert Rosenboom, the head of the department for education in the
authority for schools and vocational education in Hamburg, October 10, 2008.

[153]
Human Rights Watch group interview with four women wearing the headscarf of
diverse professional background at a centre and association for further
education and encounter of Muslim women (Fortbildungs- und Begegnungszentrum
muslimischer Frauen e.V., BFmF) in Cologne, April 11, 2008.

[155] Human Rights Watch interview with "Sara," a secondary
school teacher, June 12, 2008. The paradox simultaneous demand for more
teachers with a minority background was also pointed out in Human Rights Watch
interview with a special education teacher with civil servant status Rabia
(Renate) Karaoglan, Dortmund, Ju ly 28, 2008.

[156] Human Rights Watch group interview with four women
wearing the headscarf of diverse professional background at a centre and
association for further education and encounter of Muslim women (Fortbildungs-
und Begegnungszentrum muslimischer Frauen e.V., BFmF) in Cologne, April 11,
2008.

[157] Human Rights Watch interview with Martina (Mamak)
Makowski-Johari, July 30, 2008, Frankfurt, primary school teacher who completed
her study and is on maternity leave because she has had a baby.

[158] Human Rights Watch group interview with four
headscarf-wearing women of diverse professional background at a centre and
association for further education and encounter of Muslim women (Fortbildungs-
und Begegnungszentrum muslimischer Frauen e.V., BFmF) in Cologne, April 11,
2008. Human Rights Watch interview with Rania (not her real name), elementary
teacher in North-Rhine Westphalia, Cologne, July 29, 2008, who is currently on
prolonged parental leave because of the ban. Human Rights Watch phone interview with "Aida," trainee teacher, Hamburg, October 27, 2008.

[161] Human Rights Watch group interviews with four
headscarf-wearing women of diverse professional backgrounds at a centre and
association for further education and encounter of Muslim women (Fortbildungs-
und Begegnungszentrum muslimischer Frauen e.V., BFmF) , Cologne, April 11,
2008.

[162] Human Rights Watch interview with "Sara," a secondary
school teacher on June 12, 2008.

[165] Human Rights Watch Interview with an elementary
teacher in North-Rhine Westphalia in June 2008.

[166] Human Rights Watch Interview with an elementary
teacher in North-Rhine Westphalia in June 2008.

[167] Human Rights Watch email correspondence with
"Emilie," converted elementary school teacher with civil servant status on
maternity leave from North-Rhine Westphalia on May 26, 2008. She studied
German, mathematics and art, but was also used for other subjects when
necessary including sports.

[168] Human Rights Watch interview with Elisabeth (not her
real name), who had done special studies for three years to become a
"supporting teacher" on June 4, 2008 in Bavaria.

[174] Human Rights Watch interview with Maryam Brigitte
Weiss, spokeswomen of the community of interest ISGG (Initiative for
self-determination, belief and society), women's representative and
vice-chairman of the Central Council of Muslims, Cologne, April 12, 2008.

[175] Human Rights Watch Interview with an elementary
teacher, North-Rhine Westphalia, June 2008. Similar reasons were mentioned in
Rights Watch interview with Rabia (Renate) Karaoglan, Dortmund, July 28, 2008,
who also mentioned that only with the Ludin case she and others attracted
attention, before they "had been in the system."

[178] Human Rights Watch group interview with four
headscarf-wearing women of diverse professional background at a centre and
association for further education and encounter of Muslim women (Fortbildungs-
und Begegnungszentrum muslimischer Frauen e.V., BFmF) in Cologne, April 11,
2008. Human Rights Watch interview with Maryam Brigitte Weiss, secondary school
teacher wearing headscarf in North-Rhine Westphalia and "Grace Kelly style"
lawsuit, spokeswomen of the community of interest ISGG (Initiative for
self-determination, belief and society), women's representative and vice-chairman
of the Central Council of Muslims, Cologne, April 12, 2008.

[179] The position of lay judge is honorary. They are
required to be neutral and impartial and enjoy the same independence as
professional judges.

[180]In January
2006, a judge of the district court Bielefeld refused a lay judge because of
her headscarf. As the lay judge consequently left the court room, no formal
court decision was issued. The regional court Bielefeld rejected however to
also generally strike her off the list of lay judges. In Dortmund, the chair
judge of the regional court (Landgericht) excluded in November 2006 a lay judge
from the trial because she refused to take off her headscarf during the hearing
and replaced her by a substitute.

[181] In the Berlin case in 2004, the defendant applied for
the exclusion because of impartiality but the request was rejected by the
court, http://www.welt.de/print-welt/article295150/Erstmals_Schoeffin_mit_Kopftuch_in_einem_Berliner_Gericht.html
(accessed January 2, 2008).

[184] The justice minister of Hesse decided in July 2007,
after complaints from a lawyers' association, that a trainee lawyer at the district
court in Offenbach because of her headscarf could attend the hearings not on
the bench but only in the auditorium, would not be allowed to take evidence nor
could she perform as the representative of the prosecution in session, which is
also part of the education. See "Fail because of headscarf" (Ungenügend wegen
Kopftuch), Der
Spiegel
27/2007, July 2, 2007, p. 18, http://wissen.spiegel.de/wissen/image/show.html?did=52109088&aref=image036/2007/06/30/ROSP200702700180018.PDF&thumb=false (accessed
January 2, 2008).

[185] In 2003 a trainee lawyer at the prosecution in
Osnabrück in the district of the High State Court of Oldenburg had given a
written release declaration to renounce wearing a headscarf on duty. See
"Headscarf is taboo in Lower Saxony's justice" (Kopftuch ist in Niedersachsens
Justiz tabu), Welt Online, November 14, 2003,
http://www.welt.de/print-welt/article273006/Kopftuch_ist_in_Niedersachsens_Justiz_tabu.html
(accessed January 2, 2008).

[186] According to a May 2004 non-binding recommendation of
the Cologne council of judges, Muslim trainee lawyers with headscarves should
sit separated from the judges amongst the witnesses and spectators, to prevent
being "identified with the court." It includes a clear instruction that each
judge is responsible for deciding individually whether trainees are permitted
to wear headscarves during court proceedings. See European Forum for Migration
Studies (EFMS) Migration report, May 2004 at
http://www.efms.uni-bamberg.de/dmai04_e.htm (accessed January 2, 2008. There
was a 1998 case involving a trainee lawyer in Cologne who lost her lawsuit in
the Administrative Court in Cologne against her release from the training of
tasks representing the prosecutor during the hearing. Another conflict case in
2000 at the district court in Düsseldorf concerned an apprentice judicial
clerk, who was prohibited to sit next to the judge's desk while taking the
minutes wearing her headscarf. A compromise was agreed, that she was only
allowed to attend the hearings sitting in the auditorium. See Sigrid Kneist,
"religion clash: Muslim trainee is not allowed into the court room with
headscarf" (Religionsstreit: Muslimische Referendarin darf nicht mit Kopftuch
in den Gerichtssaal), Der Tagesspiegel, October 7, 2001,
http://www.tagesspiegel.de/berlin/;art270,1972352 (accessed January 2, 2008).

[187] "With headscarf left out?" (Mit Kopftuch außen vor?),
Leaflet of
the equality office of Berlin on discrimination of women with headscarves, also
outside the public service in 2008.

[188] At a panel discussion in June 2008, Dr. Fritz
Felgentreu, member of the Berlin House of Representatives; conference
proceedings, "Integration between 'Leitkultur' and laicism – five years after
the headscarf judgment of the Federal Constitutional Court", Conference of the VEIL
project in Berlin in cooperation with the Friedrich-Ebert-Stiftung, June 5-6,
2008, http://131.130.1.78/veil/Home3/download.php?4882fd80acb79db3d38c9378a646bbb9
(accessed December 30, 2008).

[190] Human Rights Watch group interviews with four women
wearing the headscarf of diverse professional background at a centre and
association for further education and encounter of Muslim women (Fortbildungs-
und Begegnungszentrum muslimischer Frauen e.V., BFmF) in Cologne, April 11,
2008. Human Rights Watch interview with Rabia (Renate) Karaoglan, Dortmund, July 28, 2008.

[192] Human Rights Watch group interviews with four women
wearing the headscarf of diverse professional background at a centre and
association for further education and encounter of Muslim women (Fortbildungs-
und Begegnungszentrum muslimischer Frauen e.V., BFmF) in Cologne, April 11,
2008.

[193] Human Rights Watch group interviews with four women wearing
the headscarf of diverse professional background at a centre and association
for further education and encounter of Muslim women (Fortbildungs- und
Begegnungszentrum muslimischer Frauen e.V., BFmF) in Cologne, April 11, 2008,
of which one added: In the schools most cleaning ladies wear headscarves and
then you show the girls that with headscarf they only let you take cleaning
jobs."

[195] See also Memorandum to the Turkish Government on
Human Rights Watch's Concerns with Regard to Academic Freedom in Higher
Education, and Access to Higher Education for Women who Wear the Headscarf
Human Rights Watch Briefing Paper June 29, 2004.

[196] At a panel discussion in June 2008, Dr. Fritz
Felgentreu, member of the Berlin House of Representatives; conference
proceedings, "Integration between 'Leitkultur' and laicism – five years after
the headscarf judgment of the Federal Constitutional Court", Conference of the
VEIL project in Berlin in cooperation with the Friedrich-Ebert-Stiftung, June
5-6, 2008, http://131.130.1.78/veil/Home3/download.php?4882fd80acb79db3d38c9378a646bbb9
(accessed December 30, 2008).

[197] Cases of teachers employed by in state schools in Germany who began to wear the highly visibly reddish-colored clothing of the in the 1980s
increasingly appearing Bhagwan (Osho) religious movement (and the Mala, the
image of Bhagwan in a medallion on a necklace), which at that time was
considered a sect. Courts at the time prohibited this in two cases: see Oberverwaltungsgericht Hamburg [Hamburg
High Administrative Court] decision from November 26, 1984, Neue Zeitschrift
für Verwaltungsrecht NVWZ 1986, 406; Bayerischer Verwaltungsgerichtshof
[Bavarian Administrative Court] decision from September 9, 1985, NVwZ 1986,
405, Federal Administrative Court decision from March 8, 1988, NVwZ 1988, 937. The movement does not have any important number of
members anymore and their leader Rajnesh abolished the practice of wearing red
clothing in 1985 and the Mala in 1987.

[198] See for instance debate in the state parliament in
Baden-Württemberg at the first reading of the draft law amending the school act
on February 4, 2004, plenary proceedings, 13/62, 13th election period, 62nd
session, http://www.landtag-bw.de/Wp13/Plp/13_0062_04022004.pdf
(accessed January 5, 2009). In information provided in interview with Ministry
of education of Hesse, October 9, 2008, Wiesbaden, officials also referred to
the Bhagwan cases as further prehistory to the law.

[200]In its ruling on the Ludin case, the Federal Constitutional Court pointed out that the headscarf worn by Muslim women is
perceived as a reference to greatly differing statements, moral concepts and
diverse reasons for wearing it. Consequently in view of the variety of motive,
the interpretation of the headscarf may not be reduced to a symbol of the
social repression of women. Rather, the court underlined, the headscarf can for
young Muslim women also be a freely chosen means to conduct a self-determined
life without breaking with their culture of origin.

[203] See Memorandum
to the Turkish Government on Human Rights Watch's Concerns with Regard to
Academic Freedom in Higher Education, and Access to Higher Education for Women
who Wear the Headscarf Human Rights Watch Briefing Paper, June 29, 2004.

[210] See for example, public statements by: the governing
body and the women section of the Northelbian Evangelical Church as well as the
Working Group of Christian Churches Kiel in 2006 and Bishop Hans Christian
Knuth, chairperson of the Northelbian evangelical church council in August
2006, http://www.bischoefin-hamburg.de/; the
Evangelical state bishop of Schaumburg-Lippe, Jürgen Johannesdotter, the
Praeses of the Church of Rhineland Nikolaus Schneider and the Bishop from
Thuringia Christoph Kähler in 2004.See also http://www.katholisch.de/10595.html,
http://www.katholisch.de/9918.html and http://www.katholisch.de/10235.html
(accessed December 30, 2008).

[214] Memorandum to the Turkish Government on Human Rights
Watch's Concerns with Regard to Academic Freedom in Higher Education, and
Access to Higher Education for Women who Wear the Headscarf Human Rights Watch
Briefing Paper, June 29, 2004.

[215] See article 5 (1) of the Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief, proclaimed by General Assembly resolution 36/55 of 25 November
1981.